United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PHILIP THORNTON (of Counsel) The Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ.


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal from the decision of an employment tribunal sitting at London North whose extended reasons were promulgated on 1 October 1999 shortly after the hearing, which had taken place on 28 September. The hearing was itself a preliminary hearing of the question of whether or not the respondent had a disability within the meaning of the Disability Discrimination Act 1995. The tribunal held that he did have such a disability and as their order records: -

'The unanimous decision of the Tribunal is that the Applicant suffered from a disability as defined by Disability Discrimination Act 1995.

The parties having agreed terms this claim is dismissed on withdrawal by the Applicant.'

The first question which arises is whether or not there is any jurisdiction to hear this appeal in the light of the fact that the claim appears to have been dismissed on the basis that the parties had settled it.

2. Mr Thornton points out that jurisdiction is confirmed by S.21 Employment Tribunals Act 1996 which provides that an appeal lies to this appeal tribunal on any question of law arising from any decision of or arising in any proceedings before an employment tribunal under the Act. He argues first that the section preserves a right of appeal even though the claim was dismissed after settlement. As an alternative he submits that it was a term of the settlement, even though it is not recorded in the written agreement signed by representatives on the day of the hearing, that it was without prejudice to the right to be able to challenge the base decision that the respondent was disabled. It seems to us that we are unable to resolve that decision at a preliminary hearing if for no other reason than that it is unclear from the documents which we have what stance the respondent's representatives might take. For that reason we think there should be a full hearing on the question of jurisdiction and the respondent must feel free to make an application for permission to adduce any evidence relating to what transpired at the hearing on 28 September.
3. On the merits, the points taken by Mr Thornton really go to the sufficiency of the tribunal's reasons for deciding that there was a disability. He points to the absence of a clear evidential basis for the tribunal's conclusion that the respondent suffered from a progressive condition which was likely to involve a substantial adverse effect on his day-to-day activities in the future even though the medical evidence was that he did not have such a substantial adverse day-to-day effect at the time of the hearing. He also points to the failure of the tribunal to analyse the evidence about the respondent's lifting ability and the absence of analysis in relation to the code of guidance of the evidence as to his mobility.
4. It seems to us that those criticisms do give rise to arguable points of law as to the sufficiency of the tribunal's reasons as to their basis in the evidence. We order that the case should proceed to a full hearing. I propose listing category C - time estimate half a day - skeleton arguments 14 days before the hearing. The Chairman's notes may throw light upon her understanding of what the agreement between the parties was as well. Permission for the appellants to put in evidence an affidavit from Mr Zuke about what happened on 28^th September by 13 April.