United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DESHPAL PANESAR (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE D SEROTA QC

1. This is the Preliminary Hearing of an appeal against the decision of the Employment Tribunal at Newcastle upon Tyne chaired by Mr J D Myers promulgated on 1 February 2001. The Employment Tribunal decided that the Applicant's claim alleging discrimination on the basis of disability against his former employer, the Respondent, was out time and it was not just and equitable to extend time. The Employment Tribunal declined to review its decision in a further decision dated 25 April 2001.
2. Mr Elliott joined the Respondent in the Civil Engineering Department as a material technician on 26 October 1987. On 11 February 1989 he suffered an industrial accident. His leg was crushed. There were subsequent proceedings taken in the County Court which we shall refer to later, in which the County Court found the accident was solely the responsibility of the Applicant. Although the Applicant sought permission to appeal this was subsequently refused.
3. He was off work for some time. His leg caused considerable disability but he returned to work in February 1990. He was thereafter re-deployed in the office, now as a traffic management technician but he continued to have problems caused by the accident. In July 1992 he had an operation on his knee that led again to him being absent from work for some little time.
4. We are not certain precisely when he returned to work but as we have said his knee continued to give him problems. We know that from 1994 he was suffering some form of mental illness possibly in the form of post traumatic stress disorder and depression, and he began receiving treatment for that we believe in 1994. In November 1996 he had a further operation. He was unable to return to work. His position was regularly monitored by the Respondents' occupational health physician. The question of job sharing had been raised with the Applicant but he rejected the possibility. The year 1996 - 1997 we are told was a bad year for Mr Elliott. He was suffering from stress and depression which was exacerbated by the fact that his daughter had a very serious operation. He was engaged in litigation concerning his accident which in fact was not completed until some time in 1999. He was initially represented by solicitors with the assistance of his trade union and eventually represented himself in the proceedings which is as we have said were unsuccessful as was his application for permission to appeal. He now blames his solicitors for the loss of those proceedings and we believe that there is further litigation underway.
5. He stated that as a result of what had happened he had lost trust in trade unions and solicitors. We have already said that in November 1996 as a result of the operation Mr Elliott was unable to return to work. Job sharing had been rejected and on 11 December 1997 he retired on the grounds of ill health having been off work as we have said for over a year. We should mention that we have seen documents written by Mr Elliott during this period of time. They are in the second part of our bundle and we refer in particular to letters written by Mr Elliott at page 3, a letter dated 29 October 1997, page 10 dated 13 February 1998 and also further correspondence with the Employment Tribunal and documents prepared in connection with the Employment Tribunal proceedings.
6. We feel bound to say having seen those documents, in particular those that stand from 1997 and 1998, that show Mr Elliott was perfectly capable of conducting his affairs. Mr Elliott did not take any proceedings in relation to the alleged discrimination until the 18 August 2000. It is not altogether clear in what way he claimed in his ET1 that discrimination had taken place but it seems to be in relation to the failure to offer him part time work. But the ET1 was of course presented some 2½ years after his dismissal. Mr Elliott maintains that it was only when a new psychiatric nurse who was assigned to him in March 2000 remembered that he might have a claim in August 2000, that he first appreciated he might have a claim against the Respondents for disability discrimination.
7. The matter came before the Employment Tribunal on 25 October for a Preliminary Hearing. Unfortunately the Applicant had arranged to have a flu injection at 12.15 and therefore the proceedings did not get very far on that date but an arrangement was made that the Applicant might make further written submissions to the Tribunal which he did in a letter of 20 November. The hearing was adjourned and the matter came back to the Tribunal on 5 January. It is clear that during the course of that hearing the Employment Tribunal drew Mr Elliott's attention to the law at the effect of cases relating to extended time and that. It is clear that the Respondents took the view and submitted that his case was out of time and that it would be inequitable to extend time. The Respondents further drew attention to the absence of any collaborative medical evidence.
8. There is a dispute as to what happened on that occasion. Mr Elliott maintains that during the course of that hearing it was indicated to him by the Chairman of the Tribunal that he did not need medical evidence. On the other hand the Chairman in his letter has said that this was not the case and that at no time was the question of getting further medical evidence raised. As we shall show shortly the complaint made by Mr Elliott relates to his being misled in some way by the Tribunal.
9. On 13 February Mr Elliott applied for a review. What Mr Elliott had to say was this:

"14 At the hearing on 05 January 2001 the applicant told the tribunal that if the veracity of my mental health was questioned then I would provided the information. The tribunal indicated that this information was not required and so I understood at that time what I had said and submitted regarding my first awareness of the fact and to be able to deal with my employment termination was in fact a case of Disability Discrimination was not in question. This awareness and ability occurred after additional psychiatric treatment in early August 2000."

10. On 13 March he produced a letter which is at the second part of our bundle at page 24 from Dr Aal who is the Assistant to the Senior House Officer, Dr Ali who is the consultant at the Mental Health Unit, Leazes Wing, Royal Victoria Infirmary, Newcastle Upon Tyne. This confirms that the Applicant has received psychiatric treatment since 1997 for post traumatic stress disorder and depression. It says that during the session of the 11 August the matter of unemployment and its cause was discussed. This brought out the issue that termination of his employment amounted to discrimination on the grounds he was disabled.
11. Dr Aal suggests that Mr Elliott has a diagnosis of post traumatic stress disorder and depression which had adversely affected his life because his concentration has become poor and he was not sleeping well and his mood had been low for a long time. He has had difficulty from moving forward from his accident, become socially isolated, finds it difficult to leave the house, experiences flashbacks, hyper-arousal and marked anger and irritability.
12. The effect of this report does not in fact help Mr Elliott at all because it confirms firstly that he simply was unaware of the possibility of making a claim until he was told rather than that his inability to present a claim was because of his disability and secondly it does not confirm what Mr Elliott was seeking to tell the Tribunal that he was so affected by his mental problems that he was unable to appreciate that he had a claim. We know something about the basis of the way the case was put by Mr Elliott from paragraph 13 of the decision of the Employment Tribunal:

"He said in the County Court he simply could not do justice to himself because of the stress/psychosis he was suffering after the accident. He simply was not fit to pursue the case. A restated and reaffirmed that it was only in July or August of last year that he was fit to bring his disability claim. He added that between 1997 and year 2000 was "a blur"; that he was not in full command or control; he insisted that the medicaments he had been prescribed took time to work; his ability to cope had been helped particularly by the psychiatric nurse that had been assigned to him. So he asked us to look at all the circumstances of this case and say it was right meaning just and equitable that he should be allowed to proceed."

13. The Chairman's letter confirmed that the Employment Tribunal was well aware of the Applicant's disability. He maintained that the Applicant did not seek to address further evidence and there was no suggestion that such evidence would have been available. The Employment Tribunal clearly had before them significant evidence relating to the Applicant's disability. This in fact is conceded by Mr Elliott himself in his affidavit sworn on 30 November 2001 pursuant to the Order of the Employment Appeal Tribunal when he states:

"At the hearing on the 05 January 2001 I have a very clear memory the tribunal had before it a chronology outlining among other things the psychiatric treatment I was receiving and had received. The Respondants solicitors brought up and argued that there was no evidence of my mental illness apart from my word."

14. He then goes on to say that he then indicated he could produce medical evidence. But what is significant is that the Employment Tribunal in our opinion were not saying there was no medical evidence, but there was no medical evidence before them (and we refer to paragraph 15) that would justify the proposition that it was only in August 2000 the Applicant was able to understand he had a claim before the Tribunal. They took the view on the evidence he was sufficiently well to act much earlier.
15. It seems to us that there is no basis upon which that particular finding can be attacked. All the more so as Mr Elliott has now produced a medical report which does not bear out the proposition that Mr Elliott was asking the Employment Tribunal to accept. It seems to us in those circumstances that the Employment Tribunal, even if there may have been some misunderstanding, and we make no findings about this, as to the question of producing further medical evidence, would have made no difference. The Applicant's case was not that he was simply suffering from a condition but that condition rendered it impossible for him or substantially impaired his ability to bring proceedings. The real problem Mr Elliott faced was that he apparently was unaware of what he now says was his right to bring proceedings for disability discrimination, despite having at one time had a trade union and solicitors acting for him and despite, as it seems to us, his ability to conduct proceedings in the County Court and to write eminently sensible and cogent letters as we have described. In those circumstances it seems to us that the case put forward that the Employment Tribunal fell into error of law by suggesting to Mr Elliott he need not obtain medical evidence has no reasonable chance of success. What the Employment Tribunal did was not to complain there was no medical evidence but to say there was no medical evidence to corroborate his case on incapability and the medical evidence he has now produced is wholly consistent with the decision taken by the Employment Tribunal.
16. In those circumstances despite the eloquent submissions made by Mr Pamesar it seems to us that no arguable point of law is shown on this appeal. Before we conclude this judgment we would like to express our sincere gratitude to Mr Panesar who appeared today on behalf of the ELAAS Scheme. We are always extremely grateful to those who on the ELAAS Scheme and we would like again to express our gratitude to Mr Panesar of the helpful and careful way he has presented the case for Mr Elliott.