United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant (Respondent)	Grant Hutchison, Advocate, Instructed by, Renfrewshire Council Legal Services, 3rd Floor North Buildings, Cotton St. PAISLEY PA1 1TT
For the Respondent (Claimant)	Mr Brian Napier (One of Her Majesty's Counsel). 11 Parliament House, Parliament Square, Edinburgh EH1 1RF


 


SUMMARY

In the course of a tribunal hearing, orders were made (1) allowing the claimant to amend her claim; and (2) restricting the respondents in the evidence that they were allowed to seek to elicit. The respondents appealed. Circumstances in which the appeal was allowed so as to quash the second order and remit to the tribunal to proceed, allowing the respondents to recall the claimant and one other witness.


 


THE HONOURABLE LADY SMITH

Introduction

[1]        This appeal is against a decision to allow an amendment of the respondents' claim and to restrict the evidence that the appellants are to be allowed to seek to elicit, made in the course of a Tribunal hearing. The hearing has not yet finished. I propose to refer to parties as claimant and respondents.
[2]        The procedural history of this case is set out in some detail in the judgment of the Employment Tribunal sitting at Glasgow, Chairman Mr R M Williamson, dated 14 December 2006 and can be summarized as follows. The claimant, who is a special needs teacher, lodged an originating application with the Tribunal on 21 June 2001 in which she claimed she had been discriminated against on grounds of disability in three respects only two of which now remain, namely a failure to redeploy her and a failure to extend her period of sick pay. She has since added further particulars to her claim with which we do not require to be concerned.
[3]        In their original response, the respondents denied that the claimant was disabled.
[4]        The claimant has not worked since 30 August 1999. She claims that she has suffered and continues to suffer from a depressive illness.
[5]        Following a Hearing on Directions, a Chairman, Ms Eccles, issued a note dated 5 November 2001 in which she observed that the Tribunal would require to determine not only whether the claimant was disabled but if so, for what period or periods.
[6]        There was a Preliminary Hearing to determine these issues on 1 May 2002, following which a decision was promulgated on 9 July 2002. That decision records:

1. that at the start of the hearing the respondents had conceded that the claimant
was a disabled person within the meaning of the Disability Discrimination Act 1995;

2. that the issue the parties wished to have determined was the date when the
claimant became disabled and received the protection of the Act;

3. that the respondents conceded that as from August 1999 and continually
thereafter the claimant had suffered from a recognised psychiatric disorder and that also during that period ( i.e. August 1999 to May 2002) that disorder had had a substantial adverse effect on her ability to perform day to day activities

4. the claimant advanced August 1999 as the date when she became entitled to the
protection of the Act whereas the respondents proposed August 2000.

[7]        The Tribunal decided that it could not answer the issue put forward by the parties and simply issued a decision in which they found that the claimant was a disabled person. Parties were both dissatisfied with that as a result and the claimant appealed to the Employment Appeal Tribunal.
[8]        The Employment Appeal Tribunal, in a decision dated 27 February 2003 remitted the case back to the Tribunal to determine:

1. whether or not the claimant was disabled ;

2. whether or not the disablement was likely to last 12 months ; and

3. when the employer should have appreciated that that was the case.

The Employment Appeal Tribunal articulated its decision in such terms as to make it clear that the Tribunal ought to have applied its mind to the issue of reasonable adjustments.

[9]        The claimant sought a review from the Employment Appeal Tribunal, an application which was supported by the respondents.
[10]        The Employment Appeal Tribunal agreed to review its decision and issued the following revised order:

" that the case be remitted to the same Employment Tribunal to determine when after August 1999 ( if not August 1999 itself) it was likely that the substantial adverse effects which parties agree the claimant experienced from August 1999 onwards were likely to last for 12 months or more in total."

[11]        Following that remit, the Employment Tribunal met, outwith the presence of parties and then issued the following decision :

"It was the unanimous decision of the Tribunal that the claimant was a disabled person for the purposes of the Disability Discrimination Act 1995 and that from February 2000 it was likely that the substantial adverse effects experienced by the applicant were likely to last for 12 months or more in total."

[12]        An attempt at mediation failed and the case was listed for a full hearing. On 10 April 2005 there was a Case Management Discussion. Dates for the hearing were then fixed; dates in March 2006 required to be abandoned. The hearing was finally fixed for November 2006.
[13]        On 4 July 2006, the respondents lodged an application in which they sought leave to amend their Notice of Appearance by adding to it the following terms:

"Reference is made to a report by Dr Alan Carson dated 5 June 2006 the terms of which are held to be incorporated herein, repeated brevitatis causa and are referred to, and in the light of said medical evidence it is contended by the respondent :

(1) that by June 2001 the claimant was no longer disabled within the meaning of the Disability
Discrimination Act 1995.

(2) Failing which, that by June 2003 the claimant was no longer disabled within the meaning of said
Act of 1995.

(3) Failing which that by 3 July 2006 the claimant was no longer disabled within the meaning of
said Act of 1995."

[14]        That amendment was allowed in terms of an order pronounced on 27 July 2006.
[15]        A further Case Management Discussion took place on 24 October 2006. Parties indicated that there were no matters on which directions were sought and that the Chairman did not require to prepare any note. In particular, no order was sought and no submissions were made in respect of the amendment of the respondents' Notice of Appearance that had been allowed.
[16]        The hearing began on 6 November 2006. At the start of day 4, in response to a comment that had been made by Mr Napier QC, who appeared on behalf of the claimant, Mr Grant Hutchison indicated on behalf of the respondents that he wished to make it clear that the concession previously made by the respondents to the effect that the claimant suffers from a relevant disability and has done so since February 2000, when it became apparent that the substantial adverse effects of her condition were likely to last for 12 months or more, was withdrawn, as should, he said, have been clear from the amendment to the Notice of Appearance which had been allowed.
[17]        The Chairman raised with Mr Grant Hutchison the question of whether he intended to establish not only had the claimant ceased to be relevantly disabled but that the effect was not likely to recur. He did so under reference to Schedule 1(2) of the 1995 Act. Mr Grant Hutchison said he would take time to consider the matter. It appears that no ruling was made regarding the withdrawal of the concession at that point.
[18]        At the start of the following day ( day 5), Mr Napier made two motions. The first was for amendment of the claimant's application. He wished to add:

"For the avoidance of doubt that as from August 2000 she was also discriminated against, as above particularised on the grounds that she was a person had a past disability contrary to Section 2 of the Disability Discrimination Act 1995."

[19]        The second was that he sought an order so as to prevent the respondents from, whether by cross examination or the leading of evidence, to seek to establish that the claimant was not suffering from the adverse effects required by the 1995 Act between August 1999 and May 2002.
[20]        The Tribunal, having heard submissions, granted both Mr Napier's motions and pronounced the following order which is now appealed against :

"1. The Tribunal allows the claimant to amend her originating application by adding at the end of Section 11 the words "For the avoidance of doubt, that as from August 2000, she was also discriminated against as above particularized on the grounds that she was a person who had a past disability contrary to Section 2 of the Disability Discrimination Act 1995."

2. The Tribunal orders that the respondent be not allowed either by way of cross examination or by the leading of evidence to seek to establish that the claimant was not suffering from the adverse effects required by the Disability Discrimination Act 1995 between August 1999 and May 2002."

[21]        The Tribunal also refused a motion made by the respondents to adjourn the hearing.

The Tribunal's Reasons

[22]        As regards Mr Napier's first motion, the Tribunal were persuaded that the issue that arose was " in essence a labelling exercise" and were also influenced by "that it comes before the Tribunal at a sufficiently early stage, lack of unfairness and fair opportunity to deal with the case on the altered basis." They, further, regarded it as a legal esto response to the respondents' amendment that had been allowed in July 2006.
[23]        As regards the second motion, the Tribunal stated that it considered it too late "both as a matter of law and discretion" to allow the concession to be withdrawn. An assertion of prejudice had been made on behalf of the claimant: it was said that the claimant would suffer stress if the re-opening of the issue were allowed and the proceedings would be lengthened. The Tribunal accepted that there would be prejudice. Further, they took the view that as a matter of law, the issue raised was res iudicata because the Employment Tribunal had 'renarrated' the concession in the extended reasons attached to its judgment of 27 June 2003.

Respondents' Submissions on Appeal

[24]        With regard to the first order, Mr Grant Hutchison submitted that the tribunal's decision was perverse. They had erred in regarding it as a matter of relabelling and had allowed the claimant to seek to engage a section of the 1995 Act which gave her considerably greater protection. The respondents would be prejudiced as a result. The motion was not a response to the July 2006 amendment; if it had been, it would have been made at that time. Further, it had been plain from Dr Carson's report, which was adopted in the application, that the respondents' primary position was that the claimant had no claim after June 2001. It came far, far too late in the day and the tribunal should not have allowed it.
[25]        As regards the second order, it was apparent that this was the order that caused the respondents greater concern. The concession was functus once the hearing at which it was made was complete: Noble v De Boer 2004 SC 548. In any event, their application in July 2006 had made it plain that they no longer made that concession. The tribunal were wrong to have regarded the matter as res judicata. Reference was made to the case of The Edinburgh and District Water Trustees v The Clippens Oil Company Ltd 1899 1F 899. Even if the matter had been res iudicata, the circumstances were such that that bar to proceedings should not have been operated because res noviter principles applied: Robert Maltman v Tarmac Civil Engineering Ltd 1967 SC 177. Further, even if it had been the case that the respondents required to ask for the concession to be withdrawn, the Tribunal should have allowed them to do so in all the circumstances. It was a concession of fact which had direct legal implications. Nothing would have required to have been revisited. The circumstances were exceptional. Reference was made to Connelly v Simpson 1994 SLT 1096 and Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96.

Claimant's Submissions on Appeal

[26]        For the claimant, Mr Napier explained that whilst he accepted that the July 2006 amendment could be read as having the effect of withdrawing the earlier concession, it was not appreciated that that was what had been intended until the tribunal was under way. Prior thereto, it had been thought that the concession that the claimant's disorder had had a substantial adverse effect on her ability to perform daily activities throughout that period, had subsisted. When it was realised that that was not the respondents' position, the amendment that was the subject of the first of the tribunal's orders was prepared and presented; that was because it was considered that it was necessary as an answer to the position that the respondents did in fact adopt in terms of the July 2006 amendment.
[27]        Regarding the first order, the claimant was not relying on a new ground of jurisdiction although it was accepted that she was seeking to advance a separate claim in a technical sense. The circumstances could be distinguished from those which pertained in, for instance, the case of the Selkent Bus Company v Moore [1996] IRLR 661. The claimant was always going to have been a person with a past disability, given the determination of the tribunal in May 2003. It followed from that it was correct to allow her amendment so as to "guard against" the respondents' case as clarified by their July 2006 amendment. There would be no need for the claimant to lead any further evidence on the matter.
[28]        Regarding the second order, Mr Napier relied in particular on what the tribunal said at paragraph 50 :

"The Tribunal has considered the case of Connelly but distinguishes it on its facts not least because the concession in this case is essentially one of fact rather than law. The concessions have informed the whole basis of the respondents' and as a result the claimant's position from May 2002 until June 2006. The Tribunal considers it too late both as a matter of law and discretion to allow it to be withdrawn. The Tribunal accepts the assertion of prejudice put forward by Mr Napier and as a consequence would not be prepared to exercise any discretion which it considered it had in favour of the respondent."

[29]        Mr Napier confirmed to us that the prejudice he relied o was as stated by the Tribunal namely that the claimant would suffer stress by the 're-opening' of the issue and that proceedings would be lengthened.
[30]        He also drew our attention to the discretion vested in the Tribunal in terms of rule 10 of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 and to the overriding objective to deal with cases justly. The Tribunal was regulating its own proceedings in a manner in which it was entitled to do.

Relevant Law

[31]        Section 3A (1) of the Disability Discrimination Act 1995 provides :

"For the purposes of this Part, a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than
he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified."

[32]        The provisions of sections 1 and 2 of the 1995 Act include:

"1. (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he
has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day–to–day activities.

(2) In this Act " disabled person" means a person who has a disability.

2. (1) The provisions of this Part and Parts II [to 4] [and 5A] apply in relation to a person who has had
a disability as they apply in relation to a person who has that disability.

(2) Those provisions are subject to the modifications made by Schedule 2."

[33]        Schedule 1 of the 1995 Act contains provisions which allow for the promulgation of certain regulations and provisions whereby certain key concepts, such as 'long term effect' (paragraph 2) and 'normal day to day activities' are defined. Schedule 2 provides for various amendments required to accommodate the principle set out in section 2(1) and then, at paragraph 5, for the same purpose, includes the following provisions :

"For paragraph 2(1) to (3) of Schedule 1, substitute –

'(1) The effect of an impairment is a long-term effect if it has lasted for at least 12
months.

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry
out normal day – to – day activities, it is to be treated as continuing to have that effect if that effect recurs."

[34]        Thus, in addition to qualifying for the statutory protection under s.1 of the Act on the basis that a person was, at the time of the discrimination complained of, disabled in such a way as satisfied the requirements of paragraph 2 of Schedule 1 of the Act, he may qualify for further protection at a time when, although he does not satisfy those requirements, he is able to satisfy the disability requirements of paragraph 5 of Schedule 2 of the Act.
[35]        We note that rule 10 of the 2004 Regulations empowers the Chairman (and only the Chairman) to make any order in relation to any matter which appears to him to be appropriate. Rule 27(7) provides that, at a hearing, a Tribunal may exercise any powers which may be exercised by a chairman alone under the rules. The exercise of the power must, of course, be subject to the overriding objective that cases should be decided justly.
[36]        Turning to the matter of res iudicata, we would simply refer to the well known statement of its meaning contained in the case of Edinburgh and District Water Trustees v Clippens Oil co Ltd 1899 1F 899 where, at p.909, Lord Kinnear said :

"The question raised in the present action was not raised and therefore could not be decided in the previous interdict. The validity of a plea of res iudicata must necessarily depend upon the pleadings and decision in the previous action, and not upon any rights or equities which may have arisen antecedent to the pleadings or from any extra judicial communications between the parties. The question always is, what was litigated and what was decided."

[37]        Otherwise, we bear in mind that the Tribunal was exercising a discretion, in respect of both motions. The exercise of that discretion is only vulnerable to interference if the Tribunal took irrelevant material into account, left relevant material out of account, misunderstood the material before them, misdirected themselves on the material or the relevant law or reached a perverse decision in the sense of it being a decision that no reasonable Tribunal would have reached in all the relevant circumstances.

Discussion

(1) Claimant's Motion to Amend:

[38]        In referring to this matter as being a labelling exercise, the Tribunal appear to indicate that it is of little significance and furthermore that the respondents could be taken to have already had notice of the substance of it. We do not agree. The amendment of the claimant's claim that was allowed enabled her to add a new aspect to her case, a new 'arrow to her bow', as is evident from the statutory scheme to which we have referred. If that were not so, it would not have been required. We do not accept that the pre-existing claim encompassed it and it seemed, in the hearing before us, that Mr Napier rather accepted that that was the case. The Tribunal proceeded, accordingly, on a misunderstanding of the material that was before them. Did they, however, reach a decision which is, once all the circumstances are taken into account, one which no reasonable Tribunal would have reached?
[39]        We observe that given the time at which it was presented the claimant's application was not obviously a response to the respondents' amendment that had been allowed in July 2006. However, given the candid explanation proffered to us which really amounted to it being said that the claimant had not fully appreciated the potential import of the amendment, we are satisfied that it was open to the tribunal to proceed on the basis that it was. That being so, the exercise of their discretion falls to be considered by reference to the relevant prevailing circumstances being, simply put, that if the amendment was allowed, it would have the potential to increase the value of the claimant's claim. That was, in essence, the prejudice complained of by the respondents and the inability to seek to access that potential was, in turn, the prejudice complained of by the claimant. Matters were plainly evenly balanced. The respondents did not and do not suggest that they could not deal with the issue in evidence and in submission. In these circumstances, we are satisfied that it is not open to us to interfere with the Tribunal's decision.

(2) Claimant's Motion to Restrict Evidence

[40]        We are satisfied that the Tribunal proceeded on a misapprehension of the factual material before them and on the basis of an error in law. In our view, it is plain from the history of the case that the respondents had already been allowed to withdraw the concession in issue. Such allowance was implicit in the Tribunal's order of 27 July 2006. We do not accept that on an ordinary reading of the application to amend and the order that followed, it is evident that any part of the concession made at the earlier stage subsisted. Indeed, the Tribunal themselves appear to have allowed for that in at least one respect in paragraph 50, they refer to parties having prepared on the basis of the concession not up until the time of the hearing but only up until June 2006. The Tribunal was not, accordingly, considering, as it evidently thought, at one point (given what they say in paragraph 50) that it was, an application by the respondents to be allowed to withdraw an extant concession. It was considering an application by the claimant to prevent the respondents eliciting evidence relevant to the issues identified by them in their application which had been allowed by the order of 27 July 2006.
[41]        Further, the Tribunal misdirected themselves as to the relevant law. The question asked and answered by the Employment Tribunal whose decision was issued on 27 June 2003 was not that of whether or not the respondents had made any concessions. As they themselves said, at the foot of page 2 of their Extended Reasons:

"The question for the Tribunal to determine is when, in the period from August 1999, onwards, it was likely the substantial effects which parties agreed the applicant experienced from August 1999 onwards, were likely to last 12 months or more in total. "

and they determined :

" …the applicant was a disabled person for the purposes of the Disability Discrimination Act 1995 and that from February 2000 it was likely that the substantial adverse effects experienced by the applicant were likely to last for 12 months or more in total."

[42]        Any earlier concession by the respondents as to the end point of those effects was not part of the question asked and it was clearly not part of what was decided. That being so, the concession was not in way res iudicata and the Tribunal should not have acceded to Mr Napier's submission that it was.
[43]        Putting the matter of res iudicata to one side, the Tribunal's decision on the claimant's second motion was made separately under reference to the prejudice relied on by the claimant. The factors stated were vague and general and did not go to the heart of the claimant's case. It was not, for instance, suggested that the claimant would not be able to deal with the case that the respondents sought to advance by seeking to elicit the contentious evidence. It was not suggested that there were witnesses that she would have wanted to call on that matter which were not available. It was not even suggested that the evidence taken by that stage would have been taken any differently. Further, the Tribunal have given no consideration to the prejudice to the respondents who had plainly, until that stage, thought that they were going to be able to explore the issues that they have now been told that they cannot explore. It, further, appears as very odd that the Tribunal allowed the claimant to amend her case on the basis that it was :

". in effect an esto legal response to the respondents' amendment made as recently as June of this year …."

yet, by their second order, prevented the respondents from advancing their primary position in that esto response. We are not satisfied that, by doing so, the overriding objective was being secured and are readily persuaded that the Tribunal's decision on this matter was perverse.

[44]        In the event, we do not need to consider whether the circumstances were such that the concession was spent once the earlier hearing was concluded or whether, if not, the respondents should, in all the circumstances have been allowed to withdraw it at the hearing in November. We would simply observe that we consider that the meaning and import of a concession is a matter of fact and its effect will depend on the circumstances in which it was given. We can see that there is force in the argument that it was given in May 2002, for the purposes of that hearing only and could be regarded thereafter as spent. That would not, of course, have allowed the respondents to seek to open up what was ultimately decided, in June 2003, in that Tribunal procedure. Moreoever, the circumstances were such that there were, in our view, strong reasons why the respondents should have been allowed to withdraw the concession in November 2006. They genuinely thought that they had already done so and, moreover, that they had done so with the authority of the Tribunal, in July 2006. They had approached the hearing on that basis. The claimant had not questioned the order at any time and her understanding of it, as explained by Mr Napier, was not, with all due respect, one which the respondents should have anticipated. The case has a complicated and lengthy procedural history. No evidence would require to be reheard. The prejudice pointed to by the claimant was, as we have indicated, vague and general. Further, whilst it will always be easier to achieve the withdrawal of a concession of law, there is no rule that a concession of fact cannot be withdrawn and the concession in this case whether properly termed ' of fact' or ' of mixed fact and law' was clearly one which had significant implications for the relevant legal analysis of the case. All these matters would have pointed strongly, in our view to the need to allow the concession to be withdrawn.

Disposal

[45]        In the foregoing circumstances we will pronounce an order allowing the appeal insofar as it relates to the second of the orders pronounced by the Tribunal on 15 November 2006 thereby quashing that order and we will thereafter remit to the same Tribunal to proceed with the hearing with a direction that, in so doing, they allow the respondents, if so advised, to recall the claimant and her General Practitioner, for them to be further cross examined in evidence on behalf of the respondents and, if it is considered necessary, re-examined on the claimant's behalf.