United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N GRUNDY (of Counsel) Instructed by: Messrs Eversheds London Scottish House 24 Mount Street Manchester M2 3DB


 


JUDGE WILKIE

1. This is an appeal by Rullion Engineering Personnel Ltd against a decision of the Employment Tribunal sitting at Manchester allowing the Applicant Mrs Marsh's claim alleging discrimination pursuant to the Disability Discrimination Act 1995. The decision was promulgated on 8 January 2000 and arises out of a four day hearing between 3 – 12 November 1999.
2. Presenting the appeal for the Appellant this morning has been Mr Grundy of Counsel. He was not the representative of the Appellant before the Employment Tribunal, however, in the course of argument this morning, we gave him an opportunity to deal with what we regard as a fundamental issue in this appeal. He took the opportunity of obtaining instructions in some detail from his professional clients which has enabled him to place before us a picture of what occurred at the Tribunal.
3. Essentially the Applicant was alleging Disability Discrimination by reason of dismissal. She was also alleging unfair dismissal but that was adjourned by the Tribunal pending a decision by the House of Lords in the case of Seymour Smith.
4. In her IT1 her dates of employment were said to run from 25 August 1993 – 22 December 1998. We have in our bundle some of the notices of appearance by the individual Respondents but not the notice of appearance by the Appellant. However, it has been suggested by Mr Grundy, and we see no reason to doubt this that in their notice of appearance the date of the end of her period of employment was said to be in November 1998. It is certainly right to say that her employment was terminated by a letter from the Appellant dated 24 November 1998 taking effect on 14 December or there about.
5. In their original Notice of Appearance, Mr Grundy, on instructions, has told us and we accept from him that the Appellant put in issue the question of her disability in the following terms: - the Applicant

"does not have a disability within the meaning of the Act."

6. Pursuant to that Notice of Appearance the Applicant served on the Appellant certain medical evidence. As a result of perusal of that evidence, which set out the history of her various medical problems and the current state of play, the Appellant, who was legally represented, at the outset of the Tribunal hearing made a concession that "at the time of dismissal" she was suffering from a disability. It does not seem to be the case that the concession refers to any specific date but merely the time of dismissal. It is fair to say, however, that it appears from both the application and the Notice of appearance that, at that stage, the time of dismissal was thought to be November or December 1998. Standing that concession the Employment Tribunal records in paragraph 7 of their extended decision that the issue the Tribunal had to determine was what was the reason for dismissal. It was contended for by the Appellant that it was the lack of capability of the Applicant in the sense of her want of ability to do the work. The alternative was that contended for by the Applicant that the fact that the Applicant was away from work, due to absences related to her disability. Thus the issue whether at the date of dismissal the Applicant was a person who did have a disability within the meaning of the Act had disappeared as an issue between the parties. The sole issue was whether that was the reason for the dismissal or whether it was, as the Appellant was contending, something to do with her inability to do the work.
7. The Tribunal, having considered the evidence and made its findings of fact decided that it was the former rather than the latter which was the reason for the dismissal. As a result of the concession which had been made, namely that at the time of dismissal she suffered from a disability, and in the light of their finding that the reason for the dismissal was absence and the absence was for a reason connected with her disability, the result was that she succeeded in her claim.
8. In the course of the evidence the Employment Tribunal heard from the person who took the decision to dismiss the Applicant - Mr Saoullis. Notwithstanding the fact that the letter of dismissal was written on 24 November 1998 Mr Saoulli's evidence and evidence which was accepted by the Employment Tribunal was that the decision to dismiss had been taken in September and that no review had being carried out after September. That was evidence given at the Tribunal in advance of the closing arguments, inter alia, on behalf of the Appellant.
9. Mr Grundy, having taken specific instructions, has told us that he cannot say that any argument was placed before the Employment Tribunal, in the alternative to the Appellants main argument. The Appellants argument was that the reason for the decision to dismiss had nothing to do with her absences on the grounds of illness or disability, but had to do with her inability to do the work. The possible alternative argument might have been that at the date of the decision to dismiss, namely September, the Appellant was not suffering from a disability. That argument would have to have been run even though, in the light of the medical evidence that they had seen, the Appellant had made a concession that at the time of dismissal (envisaged as being in November 1998) she was suffering from a disability.
10. It seems to us to follow, inevitably, that Mr Grundy is now seeking on appeal to raise a new argument. The appeal in effect amounts to this. The concession was either made inadvisably or, having been made in the terms that it was made and in the context in which it was made, the context changed so that the relevant moment at which the disability had to exist was not the date of sending the letter of dismissal being November 1998 or its taking effect being December 1998. Rather the relevant date was in September 1998 when the decision to dismiss her was taken, albeit it was not put into effect until some months later. He has told us that there is nothing in the Tribunals decision which reflects this because they were not considering this issue at all. In fact it is evident from the medical evidence supplied by Mrs Marsh that she was not suffering from a disability in September, she was suffering from a condition which it was anticipated may be operable. Her disability which existed in November 1998 arose from some other cause albeit an injury or defect in respect of her back which was the same source of the problem which had been identified in September.
11. We must observe that the finding of the Employment Tribunal that the decision to dismiss was taken in September was not one which should have come as any surprise to the Appellant because it was based on the evidence given by their own main witness in the course of the hearing. They ought, in our judgment, if they had so wished, to have been well capable of putting forward the argument that is now sought to be put forward by way of a gloss on, or resiling from, the precise terms of the concession which they had made.
12. We have no basis for knowing whether the point now sought to be argued is a good one. The position, however, is that this Tribunal will only in exceptional circumstances permit an Appellant to raise at the Appellate level an argument which was not run at first instance. This is the more so where it was available to be run at first instance. This principle is based on a strong public interest in finality of litigation and applies even where the case has been decided on a basis of law that is not merely arguably, but demonstrably wrong, by the time it reaches the Appellate court.
13. It applies where a concession has been wrongly made or, perhaps in this case, not resiled from by an inexperienced advocate before an Employment Tribunal. Mr Grundy has argued that sometimes, where a principle is so well established that a Tribunal might be expected to considerate it as a matter of course but fails to do so, then that can found a new argument at the Appellate level. We think this is not such a case or anywhere near such a case. The truth is that the Appellants argued one case before the Employment Tribunal. The evidence that their main witness gave laid open, in the light of the evidence, that they had the possibility of an alternative argument. They did not run that alternative argument. Having lost on the main argument that they ran they are now at the Appellate stage seeking to run the alternative argument that they could have run at first instance but did not.
14. We can see no basis for arguing that this is the kind of exceptional circumstance in which they should be permitted to do so particularly having regard to the earlier decisions on this issue which have emphasised the importance of finality in such matters. Therefore, not withstanding the attractive way in which the case has been put forward by Mr Grundy, our conclusion is that this is simply not a case where there is any reasonably arguable point or prospect of the appeal succeeding and therefore we dismiss this appeal at this stage without the need for an inter partes hearing.