United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS QC And MR J LEWIS (of Counsel) Instructed By: Messrs Halliwell Landau Solicitors St James Court Brown Street Manchester M2 2JF
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PROPHET:

1. Mr Taylor submitted a complaint of disability discrimination against his employers, Ladbrokes Limited, to the Employment Tribunal at Sheffield on 21 January 2003. Although the complaint was drafted by solicitors on Mr Taylor's behalf, it lacks clarity as to setting out of the relevant sections in the Disability Discrimination Act 1995 ("The Act"). However, it appears to be a complaint of a failure to make reasonable adjustments which would fall to be determined under sections 5(2) and 6 of the Act.
2. The Notice of Appearance indicates that the employer resists the claim and sets out in some detail the basis of that resistance. By a letter dated 6 March 2003 the employers sought to have the Employment Tribunal proceedings stayed, pending the resolution through the civil courts of a claim by Mr Taylor against Ladbrokes, for damages for negligence and breach of statutory duties, which claim arises from circumstances similar to those which lie behind the complaint of disability discrimination.
3. The employer does not appear to have consulted the solicitors acting for Mr Taylor with a view to ascertaining if they might agree to a stay, prior to sending that letter, nor do they appear to have sent a copy of it to them. However, a Chairman of the Employment Tribunals forwarded a copy to those solicitors and sought their views. These were contained in a letter from the solicitors to the Employment Tribunal dated 17 March 2003 by which they opposed the stay. The Chairman, Mr Little, then ordered that the application to stay the Employment Tribunal's proceedings be refused.
4. That being an interlocutory matter, it was not a decision calling for reasons under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. However, when the employers indicated that they wished to appeal that refusal to the Employment Appeal Tribunal, in accordance with the practice which I understand is now adopted by most Employment Tribunals when an appeal against an interlocutory matter has been lodged, Mr Little helpfully set out the reasons in a letter to both sides dated 2 May 2003. The contents of that letter are as follows:-

"This file has now been referred to the Chairman, Mr Little, who made the order in question and he has asked me to reply as follows:

I have considered this file and the respondent's letter of 17 April 2003 on my return from annual leave. It might be helpful to set out the chronology of this particular aspect of the case. By its letter of 6 March 2003 the respondent made a reasoned application for the staying of the Employment Tribunal proceedings pending the conclusion of a civil claim for negligence being made by the applicant. Having sought the applicant's solicitor's comments (their letter of 17 March 2003) I refused the respondent's request and that is documented in the tribunal's letter to the parties of 20 March 2003. By the respondent's letter of 8 April 2003 they sought a review of what they described as the Tribunal's decision on this matter. They sent a further copy of their application (the letter of 6 March 2003). The matter was again referred to me and I caused a further letter to be written to the parties which is the tribunal's letter of 16 April 2003. As my earlier letter did not constitute a "Decision" the respondent was not technically entitled to a "Review". Accordingly I took the letter of 8 April to be a renewed request. I refused it for the same reasons as I had refused the original request.

Again on the basis that I have not made a "Decision" the respondents are strictly speaking not entitled to Extended Reasons under the Rules. However, as they have indicated an intention to appeal the interlocutory order that I have made I am happy to expand on my reasons for refusing their request.

I have directed myself that in dealing with their request I am exercising a discretion vested in me. That discretion is which must of course be exercised judicially. As to guidance on the matters that I should properly take into account when exercising that discretion I have considered the cases of Carter v Credit Change Limited [1979] ICR 908, First Castle Electronics Limited v West [1989] ICR 72 and Bowater Plc v Charwood [1991] IRLR 340. The specific matters I have considered are as follows:

1. Similarity of issues. I do not consider that there is a sufficient similarity between a claim of negligence alleging personal injury and a claim alleging unlawful disability discrimination. The concept of disability discrimination, including even though it does, the duty to make reasonable adjustments, is in my judgment sufficiently different from the statutory or common law duty which would be relevant to the personal injury claim in the civil court. I do not consider that sufficient similarity exists between the two causes of action as might for instances in the case of wrongful dismissal and unfair dismissal claims.

2. Complexity. I did not consider that the negligence proceedings in the civil court is likely to involve any more complex matters than those which of necessity would have to be dealt with by the tribunal alone having regard to its exclusive jurisdiction in relation to disability discrimination in the employment field.

3. Findings of fact. With respect I took the view that the employment tribunal is no less qualified to make proper findings of fact than the civil court.

4. Delay and the interests of justice. The observations from the applicant's solicitors made it clear that the employment tribunal proceedings had not simply been issued as a holding matter. They also made clear that the civil claim was at a very early stage, the proceedings had not been issued and might not be issued. Accordingly I took the view that the applicant was entitled to pursue his remedy before the employment tribunal and that evidentially, findings of fact could be more easily made if the matter were to come on to be heard sooner rather than later.

I hope that this will be of some assistance to the parties and their advisers."

5. At today's full hearing of the appeal, Mr Bowers QC and Mr Lewis of Counsel, represent the appellant. No one has appeared on behalf of Mr Taylor, who is content with the decision of the Chairman of the Employment Tribunal. Mr Bowers has submitted a skeleton argument which I have carefully read and he has added helpful verbal submissions this morning. He has strongly emphasised the similarity of facts and issues, and that although no claim in the civil court has yet been lodged, pre-action protocol procedures have taken place. He has also emphasised the wording in the relevant health and safety at work regulations which would have to be considered in due course by the civil court. Furthermore he has also pointed out the improvement in the time table for the pursuance of negligence claims in the civil courts following the revised civil procedure rules. Indeed, his instructing solicitor, who is well experienced in matters of this kind, has advised that it could be possible for the civil court proceedings to take place as early as the spring of 2004.
6. Mr Bowers has taken me through the fairly well-known series of cases which have dealt with appeals of this nature and also added a couple of cases which have not been reported. One thing that does emerge from consideration of those cases, is that they all turn on their own particular facts and that various special features often occur in the resolution of them. For example, in the case of First Castle Electronics v West [1989] ICR 72 there was a need for expert evidence. In the unreported case of Chorion plc and Others v Lane there were allegations of dishonesty. In the Hyde Park Residence Ltd v Murrell case (EAT/769/99) there were unusually grave allegations made. The case of Bowater plc v Charlwood [1991] IRLR 341was a special case in which the Employment Appeal Tribunal decided to consider the issue de novo.
7. All this tends to point to the fact that each case has to be considered in its individual circumstances. As the Court of Appeal indicated in Carter v Credit Change Limited [1979] ICR 908, the correct approach of this Appeal Tribunal, is not whether I would have granted or refused the stay, but whether the Employment Tribunal Chairman's order was outside his proper judicial discretion.
8. I am not able to accept that there was any error in the Chairman's approach. The Chairman carefully weighed up the pros and cons before deciding that a stay was not appropriate (see paragraph 4 above). Mr Taylor is still employed. I can see no reason why the allegation of a failure to make reasonable adjustments under section 5(2) and section 6 of the Act should not be resolved as soon as possible. It is the Employment Tribunal which is the appropriate forum for the resolution of that matter. I understand the case is listed for hearing shortly, although Mr Bowers advises me that there is an application which will be for the Employment Tribunal itself to consider for a postponement of the case as listed. That application may be for reasons other than the matters with which I am concerned today.
9. It may perhaps be helpful for me to say that so far as I can see the Employment Tribunal will not be concerned with possible complex medical matters relating to any aggravation of Mr Taylor's condition arising from any alleged negligence or breach of statutory duty. For the purposes of sections 5(2) and 6, the fact of Mr Taylor's disability is conceded. The Employment Tribunal will only have to consider whether there was a failure to make reasonable adjustments in the particular circumstances relating to Mr Taylor. That is well within the experience of an Employment Tribunal to resolve. The existence or otherwise of negligence or breach of statutory duty is not usually a factor which comes into that consideration.
10. Compensation other than the possibility of compensation for personal injuries seems likely to be limited to injury to feelings. Indeed, once liability under the Act has been resolved, and if that were to be in Mr Taylor's favour, an application could well be made to the Employment Tribunal in respect of possible deferment of consideration of any consequent personal injury remedy until the outcome of the civil proceedings.
11. Accordingly, therefore, this appeal is dismissed. I have granted Mr Bowers' request for leave to appeal.