United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J PINDER (Representative) Milton Keynes Citizens Advice Bureau Employment Law Unit Acorn House 361 Midsummer Boulevard Central Milton Keynes MK9 3HP
For the Respondent	MR A ALEMORU (Solicitor) Vista Employer Services Ltd Regent House Heaton Lane Stockport SK4 1BS

SUMMARY

Disability Discrimination: Disability -&- Practice & Procedure: Review

New point allowed on appeal – deemed past disability under the Disability Discrimination Act, Schedule 1, para 7. Original judgment reviewable once the point was taken in review application. Appeal allowed: declaration Employment Tribunal have jurisdiction in Disability Discrimination Act claim.


 


HIS HONOUR JUDGE CLARK

1. We have before us two appeals brought by the Claimant before the Bedford Employment Tribunal, Mr Slaney. The Respondent to these appeals is his former employer, Culina Logistics.
2. The first appeal is against the Judgment of a full tribunal chaired by Mr Adamson at a pre-hearing review (PHR) held on 2 December 2004, promulgated with Reasons on 28 February 2005, holding that the Tribunal had no jurisdiction to entertain his complaint of unlawful disability discrimination on the grounds that "he has not established that he has a disability" (the First Judgment). Secondly, he appeals against the Judgment of that Chairman alone, dismissing his review application, also promulgated with Reasons on 28 February (the Review Judgment).

History

3. The Claimant was employed by the Respondent as a fork-lift truck driver from November 2002 until his dismissal on grounds of medical incapacity on 10 February 2004. It seems that he had been involved in an accident at work on 14 March 2003 which left him with back and leg injuries, causing absences from work. He had also suffered a crush injury to this right foot in 1977, resulting in his being registered disabled under the then Disabled Persons (Employment) Acts 1944 and 1958.
4. Following dismissal, he presented an Originating Application to the Tribunal on 7 May 2004. He was then acting in person. He complained of unfair dismissal and disability discrimination contrary to the Disability Discrimination Act 1995 (DDA). By their form IT3 lodged on 28 May, the Respondent put him to proof that he was disabled within the meaning of the 1995 Act. The claims were resisted.
5. On 20 July 2004 a directions hearing took place before a Chairman, Mr Robjant. The Claimant attended, representing himself. In an Order promulgated on 23 July that Chairman recorded that a preliminary hearing be listed for 2 December. The preliminary issue to be determined was as to

"whether or not the Applicant (Claimant) is disabled within the terms of the 1995 Act as a result of any of the three conditions he now identifies i.e. his asthma, his foot injury and the result of the accident in March 2003".

6. It was on that basis that the matter came on for PHR before the full Tribunal chaired by Mr Adamson on 2 December. The Tribunal, we see from paragraph 1 of their Reasons, adhered strictly to consideration of the preliminary issue as identified by Mr Robjant at the directions hearing, that is to say, whether the Claimant could establish, the burden being on him whether he suffered a "present disability" as defined in Section 1 and Schedule 1 to the DDA as it then stood prior to amendments coming into effect on 1 October 2004. They held that he had not established a present disability and thus dismissed his DDA claim for want of jurisdiction.
7. In the course of the first Judgment Reasons they record this finding at paragraph 6:

"In 1977 the Claimant suffered a crush injury to this right foot. This led to him being registered as a disabled person and receiving incapacity benefit. In 1995 the Disability Benefits Centre examined the Claimant and certified him as being fit for some work but not to involve standing or lifting as a result of the previous foot injury. The Claimant visited his doctor on a number of occasions between 1993 and 1995 regarding that injury".

The Claimant then took some advice from Mr Pinder of the Milton Keynes Citizen Advice Bureau Employment Law Unit. As a result, an application for review was made to the Tribunal on 23 December. That application read:

"I wish to apply for a review of the decision that I am not disabled within the meaning of the Disability Discrimination Act 1995 'in the interests of justice under Rule 34(3) (e)'. There follow three copy documents from the Employment Service confirming that I was registered disabled and the relevance of this to the Disability Discrimination Act. I understand that this means I am 'deemed to be disabled' under paragraph 7 of Schedule 1 of the Act. I sincerely apologise for not producing this at the hearing on 2 December, but I am not a legal person and I did not realise the significance of papers received back in 2001 until I received the Judgment".

8. The Chairman, Mr Adamson, considered that application in the first instance. He summarily dismissed it without referring it to the full Tribunal under Rule 35(3) of the Employment Tribunal Rules of Procedure 2004. Dealing with the point now raised under paragraph 7, Schedule 1 to DDA, deemed past disability, he said this in his written Reasons:

"2. The details of the application are that the Claimant states that he was registered disabled and thus he understood that meant he was 'deemed to be disabled' under paragraph 7 of schedule 1 of the Act. Accompanying his application, the Claimant produced three documents. The first document was a copy of a document from the Employment Service which states that he was entered on the Register of Disabled People on both 12^th January 1995 and 2^nd December 1996 in accordance with Section 6 of the Disabled Persons (Employment) Act 1994. The expiry date of that registration is 12/6/2001. The second document was a letter from the Employment Service dated 14 May 2001 which refers to the introduction of the Disability Discrimination Act 1995. The repealing of relevant parts of the Disabled Persons (Employment) Act 1944 states:

'However if you were registered as disabled under the 1994 Act on both January 1995 and 2^nd December 1996; [when the DDA came into force] you are automatically considered to be disabled under the DDA from the three years from 2 December 1996 and 1 December 1999. After that time you will be protected by the DDA either because you meet the Act's definition or because you will be considered as having had a disability in the past'

The third copy was a copy of a certificate in respect of the Claimant stating that his registration in the Register of Disabled Persons expires on 12^th June 2001.

3. Those are documents which the Tribunal did not have before it at the pre hearing review. There is no indication that those documents were unavailable prior to the date of the pre hearing review such that they would fall within the ambit of Rule 34(3)(d) of the Employment Tribunal Rules of Procedure. In any event, I do not consider that to be of any significance as the Claimant informed the Tribunal at the pre hearing review that he had previously been registered as a disabled person and received incapacity benefit. That was information which we took into account during the pre hearing review.

4. In considering the issue before the Tribunal we had regard to the evidence presented to us. It was on that evidence that the decision was made. On the evidence before the Tribunal we concluded that while the Claimant had been registered as a disabled person he did not have a disability at the material time".

It is against this background that the Claimant now appeals both the First Judgment and Review Judgment.

New Point

9. It is now well settled law that this EAT will not, save in exceptional circumstances, entertain on appeal for the first time a new point which was not taken below. Although the Claimant acting in person mentioned the fact that he had been registered disabled in the past, at the PHR before the full Tribunal on 2 December 2004 it is conceded properly by Mr Pinder on his behalf that the Claimant did not take the point that he had, as a result of the deeming provisions of Schedule 1, paragraph 7, suffered a past disability within the meaning of Section 2 and Schedule 2 to the DDA and was thus disabled for the purpose of the Act. Had he done so, it is again properly conceded by Mr Alemoru, on behalf of the Respondent, based on the documents produced with the review application, that the Tribunal would have been bound to hold that he had a past disability and that consequently on that basis, the Tribunal had jurisdiction to entertain a complaint of disability discrimination.
10. Is this an exceptional case in which we should permit the Claimant to take this new point on appeal? The most recent statement of principle from the Court of Appeal is to be found in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719. There, the Court endorsed the general rule, formulated by Arnold J in Kumchyk v Derby City Council [1978] ICR 1116, approved by the Court of Appeal in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, that a party should not be allowed to resile from what his representative had done below, albeit through inexperience or incompetence. However, the Court allowed of a possible exception where, in the case of an unrepresented party, justice might require the EAT to put right what appeared to be a glaring injustice even though strictly, the evidence on which the unrepresented party sought to rely would have been available before the Employment Tribunal (per Brooke LJ, paragraph 15). This may be so when a new point is a "knock out point" (Brooke LJ, paragraph 16) where the point goes to jurisdiction raising a question of pure, hard-edged law requiring no or no further factual enquiry (see Laws LJ, paragraph 18).
11. Applying that approach, Mr Pinder submits:

(1) That the Claimant was unrepresented below. That is correct. Mr Pinder was not consulted until after the PHR in time to make the review application.

(2) This is a jurisdictional point. That is common ground.

(3) It is a "knock out point" in the sense that it unquestionably provides the Tribunal with jurisdiction to consider a complaint based on past (although not present, there being no appeal against the Tribunal's first judgment on that finding) disability.

(4) No further factual enquiry is necessary.

12. The real issue between the parties is whether justice, as between these parties, requires us to allow or disallow the new point to be taken. As to that, Mr Alemoru makes an interesting and powerful submission. He contends that the basis of the Claimant's substantive case on disability discrimination depends upon his alleged present disability leading to absence from work, particularly after the accident in March 2003 which is not a relevant disability so the Tribunal found. He points to the sick certificates submitted by the Claimant which all refer to back pain; that in turn being referable to the March 2003 injury, perhaps exacerbating a previous back condition, but not to the foot injury in 1977 which is the basis for the Claimant being registered disabled and hence having a past disability.
13. In response, Mr Pinder points to the medical opinion of Dr McFarlane in February 2004 which is recorded at paragraph 10 of the Tribunal's First Judgment Reasons. That doctor was of the opinion that the accident in March 2003 was in part responsible for the Claimant's unsuitability for heavy work, but he would not have been able to continue in the longer term with a combination of chronic pain from an osteoarthritic foot (pausing there, attributable we think to the past disability) and knee, obesity and previous back pain. The Claimant is now aged 50 years. Thus, submits Mr Pinder, it would be a matter for the fact-finding Tribunal at a substantive merits hearing to determine as fact whether the past disability played a significant, although not necessarily an exclusive part in the acts of discrimination complained of.
14. We accept that submission. It seems to us that for present purposes, in the absence of such findings of fact, we are quite unable to say that the interests of justice favour the Respondent on the basis that there is no real prospect of the Claimant establishing the necessary causative link for the purposes of his substantive discrimination claims. In these circumstances, we are persuaded that this is one of those rare and exceptional cases where we should allow the new point to be taken.
15. The result is that the First Judgment is set aside and instead, exercising our powers under Section 35(1) of the Employment Tribunals Act 1996, we shall substitute a declaration that the Claimant is suffering from a past but not present disability such as to provide the Tribunal with jurisdiction to entertain the DDA claims on that basis. The first appeal is allowed.
16. Furthermore, we shall allow the second appeal. A fortiori once the point was clearly taken in the review application, we have concluded that the Chairman was wrong not to convene a hearing of that application before the full Tribunal. His Review Reasons do not, in our judgment, properly address the point now taken. Following Williams v Ferrosan Ltd [2004] IRLR 607, we are satisfied that this was a case in which the interests of justice required a review, applying the overriding objective.
17. Again, exercising our powers under Section 35(1) ETA we would, on review reach the same conclusion as that reached in the first appeal.