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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> MR XX v UKBA (Jurisdictional Points : Extension of time: just and equitable) [2012] UKEAT 0546_11_3007 (30 July 2012)
URL: http://www.bailii.org/uk/cases/UKEAT/2012/0546_11_3007.html
Cite as: [2012] UKEAT 0546_11_3007, [2012] UKEAT 546_11_3007
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 30 July 2012
Before
MR H SINGH
MR B M WARMAN
Transcript of Proceedings
JUDGMENT
This judgment is revised and anonymised as to the Claimant on 22 August 2012 until further order pursuant to an unopposed application of the Claimant under Rule 23A and ECHR Art 8
APPEARANCES
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(of Counsel) Instructed by: Radcliffes LeBrasseur Solicitors 5 Great College Street London SW1P 3SJ |
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(of Counsel) Instructed by: The Treasury Solicitor Litigation & Employment Group – 4A One Kemble Street London WC2B 4TS |
SUMMARY
JURISDICTIONAL POINTS – Extension of time: just and equitable
DISABILITY DISCRIMINATION – Disability
PRACTICE AND PROCEDURE – Preliminary issues
The Claimant contended he had been discriminated against and victimised on account of his disability in a long sequence of events. The Respondent acknowledged there was proximity between all of the events and for that reason sought a stay while it conducted a comprehensive investigation. The Employment Tribunal was wrong to hold that there was not a continuing act at least during the three months prior to the presentation of the claim. Since it was arguable that there was a continuing act throughout all of the period this matter should not be determined at a PHR as it was but should go to a full hearing where the facts could be determined. The Tribunal had wrongly determined that issue estoppel applied to the Claimant’s case. He had presented a claim of disability against the same Respondent in 2005 on account of dyslexia and dyspraxia. But in the current claim he was contending disability by reason of dyslexia, dyspraxia and depressive illness brought on or by exacerbated by his treatment and he had medical evidence provided to the employer of that. That issue had formed no part of the 2005 case and issue estoppel did not apply. The Claimant had an alterable status and so on a change was entitled to present his changed status as an impairment within the meaning of the DDA 1995.
HIS HONOUR JUDGE McMULLEN QC
1. This case concerns the presentation of a claim form within the prescribed time, the exercise of discretion, and whether certain of the complaints can be said to be of a continuing act, or to have been barred by the doctrine of issue estoppel from being raised in subsequent tribunal proceedings.
2. We will refer to the parties as the Claimant and the Respondent.
3. It is the judgment of the court to which all members appointed for their diverse specialist experience have contributed.
Introduction
4. It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Reading under the chairmanship of Employment Judge Hardwick (“the Hardwick Tribunal”) with reasons to the parties on 7 July 2011. The Claimant represented himself but today has the advantage to be represented by Mr Christopher Milsom, the Respondent being represented by Mr Simon Murray, throughout, both of counsel.
5. The Claimant made claims of disability discrimination. At a CMD, Employment Judge Barrowclough ordered a PHR to consider whether the claim was in time, whether the Claimant was disabled and whether issue estoppel applied to the claims he made. The Tribunal held it had no jurisdiction because the claims were out of time and discretion would not be exercised, and in any event the principles of issue estoppel applied so as to deprive the Tribunal of jurisdiction. It did not actually decide the issue of the Claimant’s disability.
6. The Claimant appeals. Directions sending the appeal to a full hearing were given in chambers by Lady Smith who considered the Tribunal had gone too far too fast in deciding the time bar and issue estoppel points at a PHR and that there might be a case for a continuing act.
The legislation
7. A complaint under the Disability Discrimination Act 1995 as in force as the relevant times in this case is required to be made within three months of the date the act was done. Schedule 3 paragraph 3(3) provides:
“(a) Where an unlawful act… is attributable to a term in a contract, that act is to be treated as extended throughout the duration of the contract;
(b) Any act extending over a period shall be treated as done at the end of that period; and
(c) A deliberate omission shall be treated as done when the person in question decided upon it.”
8. A tribunal may consider any complaint which out of time if “in all the circumstances of the case, it considers that it is just and equitable to do so”.
9. By section 1 it is provided:
“(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.”
10. Schedule 1 supplements section 1. A long term effect is one of 12 months.
11. Employment Tribunal rules require a claim form to be submitted on a prescribed form either electronically or on paper: rule 1(3). A form has been prescribed by the Secretary of State for this purpose.
12. Extensive powers of case management are given to Employment Tribunals to conduct proceedings at a PHR and to decide preliminary matters and procedural matters such as applications for amendment of the proceedings.
The facts
13. We will state the facts quite shortly because the Claimant has been the subject of a good deal of litigation and correspondence and judge time. The Tribunal found as follows:
“3. The Claimant was born in Somalia in 1972 and was a naturalised British citizen with a British passport in 2002. He joined the Respondent as an Assistant Immigration Officer in January 2004 and was promoted to his present post of Immigration Officer in March 2005, operating from London Heathrow.
4. The Claimant suffers from dyslexia which was diagnosed in 2003. Currently he says his situation is exacerbated by depression.
5. In August 2005 the Claimant brought a claim against the Respondent under DDA (and in fact also under the Race Relations Act 1976 which was in the event withdrawn). The complaint was dismissed with the Employment Tribunal finding that the Claimant was not disabled.
6. In December 2007, again at the London South Employment Tribunal, the Claimant brought a claim of disability discrimination in relation to rejection of his application for promotion. The Tribunal rejected the claim on the basis that the earlier Tribunal in 2005 had already adjudicated that the Claimant was not a disabled person within the ambit of DDA and accordingly the same matter could not be reheard under the principles of issue estoppel. They went on to find that even if issue estoppel did not apply on the facts before the Claimant had not shown that he had a disability within the ambit of DDA. Costs of £500.00 were also awarded against the Claimant.
7. The 2007 Judgment was appealed to the Employment Appeal Tribunal which was dismissed by a Judgement from His Honour Judge Ansell sitting alone, promulgated on 3 December 2008.
8. The thrust of the Claimant’s claim focuses on a number of matters. These include his concerns regarding his performance and development reports of 2008 and 2009 and grievances in relation to failure to enforce in full reports of Ms Shenier and Ms King of the Respondent, a failure by the Respondent to promote the Claimant, including giving opportunities to act up and a refusal for internal postings to a local team at Terminal 3 at Heathrow and also finally a refusal of a transfer to Heathrow Central Casework Unit (HCCU). This last matter of a rejection of the Claimant’s request for transfer to HCCU was communicated to the Claimant by Ms Isaacs to the Claimant on 17 March 2010.
9. On 15 June 2010 the Claimant emailed a Claim Form to the Tribunal which consisted of the email and annexed thereto were particulars of claims. This was rejected. The Claimant did not use the designated Claim Form for this application and accordingly it was rejected by the Tribunal and the Claimant was informed of this by telephone on 13 July 2010. On 15 July 2010 he submitted a further claim which was accepted by the Tribunal and served in the normal way.”
14. To the above can be added the judgment of Elias LJ dismissing the Claimant’s appeal from the EAT on His Honour Judge Ansell’s judgment on 20 May 2009 case no. 82/2009/0411, who said the following:
“5. Mr XX has raised a series of issues with respect to this. First, as far as the question of issue estoppel is concerned, he submits that there are a number of reasons why the findings in 2005 should not stand. He submits that the Tribunal at that stage did not have before it all the relevant material. In particular there is a report which he has since obtained with respect to his dyslexia, and he says that if the Tribunal had assisted him at the time with means to obtain the report, then the outcome may have been different. He was not legally aided, I believe, before that Tribunal and was defending himself, and he wishes to have that opportunity to be legally aided and to have a lawyer acting for him.
6. Perhaps most importantly, Mr XX submits that the real difference between 2008 and 2005 is that by 2008 he was carrying out a different job and therefore the career structure was different, and the difficulties he faced in the context of progressing his career were more fundamental by 2008. He relies upon the decision of mine, called Paterson v Commissioner of Police of the Metropolis, where I held that there would be circumstances where somebody who has a disability of a kind which is a clear bar to the progression of their professional life is likely to be able to establish that that is a relevant disability within the meaning of the legislation.
7. I think there are difficulties with these arguments. Plainly, there are circumstances where disabilities may get worse over the years. It will not then be an issue of estoppel to come back to the Tribunal and say, ‘I am now suffering significantly differently than I was three or four years ago’. But that is not, as Mr XX accepts, the position with relation to dyslexia or dyspraxia. So that in so far as he submits that the Tribunal should now consider fresh evidence, it follows that that evidence could have been provided before the Tribunal in 2005. I appreciate it can be difficult for litigants in person to pay for relevant reports and so forth, but that is a problem that many litigants face. It is for the claimant to establish his disability to the requisite standard. He had the opportunity in 2005 to do that. Nothing significant has changed. I do accept that he has been promoted, and I recognise that he considers the nature of the job he is now doing means his disability has a more marked affect on his career development, but that does not change the question of whether or not he is disabled in the meaning of the legislation.
8. It may be that if the Tribunal in 2005 had available a decision I gave last year in Paterson, it might have come to a different view. That I know not. Again, changes in the law in this context, particularly when they are of uncertain ambit, cannot be relied upon to justify having the case tried again. I have explained to Mr XX that the principle of finality is an extremely important one in this context. He suggested that the Tribunal in 2005 may not have focused properly on the dyspraxia element of this case; but that, it has to be said, looking at the documentation, has been something of a make weight, and in any event it was for to pursue all the relevant aspects of his disability before the Tribunal at the relevant time.
9. It follows that I can see no realistic prospect of showing that the Tribunal was wrong in 2008 to find that issue estoppel did apply. The question of whether his dyslexia and dyspraxia constituted a disability under the legislation was considered and determined at that stage, and finality requires that that must be the end of the [word missing]. It cannot be open to bring fresh material before the court, which could have been provided before the Tribunal in 2005.”
15. Following that suite of litigation the cases were rationalised by Employment Judge Lewis at Reading Employment Tribunal on 12 March 2012. By that time the Claimant had been dismissed on 13 October 2011 but reinstated on 9 January 2012 and demoted. He contends that since his reinstatement he has not been paid his wages. Judge Lewis acknowledged there was confusion about the state of play and said this:
“2. The confusion arises in part from the multiplicity of claims. I would urge Mr XX to reflect on the extent to which presenting further claims is in the interests of justice.
3. Case 2703555/2009 was struck out by EJ Hill on 18 June 2010. The Claimant’s appeal against strike out was allowed by the EAT (XX2…). The claim was subsequently settled and judgment issued on 25 May 2011 dismissing the claim on withdrawal.
4. [Concerns the present cases.]
5. Case 2701734/2011 was struck out by EJ Lewis on 1 September 2011 on 21 November that judgment was revoked by consent and the claim stayed pending the current appeal. On 7 February 2012 the EAT declined to proceed with an appeal against a revoked judgment (XX3…).
6. On 9 January 2012 the Claimant presented case 2700057/12…
7. On 10 January 2012 the Claimant presented case 2700058/12…
9. …In anticipation of draft responses and an application to submit late responses, I declined to proceed to list these matters further for the next two weeks…”
16. The Claimant appealed against that summary and decision: XX4….. It was rejected on the sift by Mr Recorder Luba QC as an abuse of process. The Claimant launched a fresh appeal under EAT rule 3(8) which too was rejected by Wilkie J for the same reasons as Mr Recorder Luba had given. There was no application under rule 3(10).
17. One can understand the Respondent’s irritation at having to face further claims from the Claimant and its desire to be free of issues which had already been determined. Thus, the present proceedings were conducted with a view to a determination of the Respondent’s contention that the present claim was out of time and that discretion should not be exercised, and that the issue had been determined and was subject to the doctrine of issue estoppel. The reference to 0470/10 is to the judgment of His Honour Judge Richardson and members in XX v Foreign & Commonwealth Office. In that the Claimant had applied for a job and the case proceeded on the basis that the Claimant was disabled by dyslexia and dyspraxia. The point about the Claimant’s disability was not taken in the EAT by the Foreign & Commonwealth Office and the Employment Judge’s decision to strike out the claim, which was overturned, was not to do with the categorisation of the Claimant’s condition.
18. The Claimant contended that the Tribunals which had dealt with his claim thus far had been wrong on the issue of disability for he was disabled by reason of dyslexia and/or dyspraxia. In any event his condition had been exacerbated by the onset of depression. A serious event on 23 November 2009 which was to be joined to his dyslexia and so constitute a disability for the purposes of the statute.
19. In order to determine the first issue of jurisdiction, the time point, the Tribunal looked at the claim form and found that the last act complained of was that of Ms Isaacs’ who rejected the Claimant’s request to transfer to HCCU on 17 March 2010 and that prior to that the most recent act of discrimination was 3 November 2009. The claim form should have been submitted on 16 June 2010; it was, but it was not on the correct prescribed form. When the Claimant heard from the Tribunal on 14 or 15 July 2010 to that effect, he acted promptly and served a proper claim on 15 July 2010. The Tribunal found that the claim was out of time and that there was no continuing act and thus the Tribunal had no jurisdiction and nor would it provide jurisdiction by exercise of its just and equitable discretion. The Employment Tribunal recorded the following:
“19. We agree with the contentions of Counsel for the Claimant that there is no continuing act distilled from the Claim Form, rather a variety of disparate matters on which the Claimant puts his claim of discrimination. We agree that the case of Aziz v FDA does not assist the Claimant.
20. The majority of the matters complained of in the Claim Form focus on the year 2009 and are considerably out of time. The only recent matter was the determination by Ms Isaacs on 17 March 2010 and the Claim Form submitted on 15 July is approximately one month out of time. The Tribunal has to consider whether it is just and equitable to extend time. The Claimant has brought two proceedings against this Respondent in the London South Tribunal and has also brought proceedings against the Foreign and Commonwealth Office relating to a job application which was in the event settled between the parties. The Claimant was well aware of the requirement for a claim to be made on a prescribed Claim Form. He also at this Hearing stated that he was aware of the three month time limit, which was no surprise to the Tribunal having regard to his previous applications. It would almost be a given that he was aware of the time limit against that background.
21. Time limits have to be adhered to and the Claimant could and should have timeously presented his application against the rejection of his transfer to HCCU. He submitted it in a form which he must have known would not be accepted. In all the circumstances we conclude that it is not just and equitable to extend time.”
20. The Tribunal then went on to consider the doctrine of issue estoppel based upon the change in the Claimant’s circumstances. The Tribunal said this:
“23. In any event other medical evidence adduced by the Claimant from Doctor Desai (C65 and 67) refer to a moderate depressive issue which was likely to improve as his depression improves. Doctor Slavin from Health Management by letter of 14 January 2010 (R81-82) states on page 2 first paragraph: ‘it is highly unlikely that with a short term common mental health problem that his mental health will be covered by disability legislation nor would it be regarded as a serious underlying medical condition.
24. We are clear that the Claimant is endeavouring to relitigate matters which have been determined previously by other Employment Tribunal and by the Employment Appeal Tribunal. He is endeavouring to introduce the dimension of depression to show a considerable change of circumstances to overcome the high bar described in the Judgment of His Honour Judge Ansell. We have seen evidence of a moderate depressive episode but no real evidence of a significant change in the Claimant's circumstances. The Claimant made great play of the psychological assessment report of Professor McLoughlin dated 4 March 2010 (C78). The Professor stated that at a memory/processing level he was one of the most severely dyslexic people he had ever met and assessed. However as Counsel pointed out the Claimant was able to address this Tribunal for over two hours without a note on submissions that Counsel had made and recalled them. The Claimant at the conclusion of the Hearing did say that he had done a lot of preparation and some of the arguments had been used previously. We have to say that in our view the Claimant was an articulate and, as Counsel put it, eloquent individual who presented his case in an ordered and professional manner which was commendable. We acknowledge the diagnosis of dyslexia but it is to the Claimant's credit that he seems to have found coping strategies, certainly in the presentation of his case.”
21. In the light of those findings the Tribunal did not go on to consider whether the Claimant was disabled under the Act but that if it were to decide that it acknowledged that the Claimant would have ‘some difficulty in establishing that he is disabled’.
22. We will address the points and the arguments of the parties in turn.
The time point
23. The time point emerges from a consideration of the claim form. The Claimant included a table of what he describes a sequence of events. The Respondent nine months later when submitting its ET3 produced its own table. The first issue can be disposed of quite easily. By regulation 1(3) the form must be on a prescribed form; it was not. It was presented on 15 June 2010 but the Claimant did not know about this administrative error on his part until he contacted the Tribunal on 13 July and was told on 14 July that his claim had been rejected and he submitted a proper form on 15 July 2010. As he said in his properly submitted claim form, if he had been told on 16 June 2010 that the form was deficient he would have completed it properly on that date and this is borne out by what in fact occurred a month later in July.
24. Nevertheless, the claim form was properly submitted on 15 July 2010 and on the Tribunal’s finding that the last relevant event was 17 March 2010, it was a month out of time. In our judgment the Employment Tribunal has made a fundamental mistake in the analysis of the dates. The last date on the Claimant’s table is 7 April 2010; this is the interview with the investigator of the Claimant’s consolidated grievance. He had been told on 20 March 2010 that he had to participate in this. In the Respondent’s table, part of its ET3, it is noted on 19 April 2010 that the Claimant ‘lodges formal grievance initially lodged on 20 March 2010’. Arguably, therefore, the Claimant’s complaints of about his treatment were still being made on 19 April 2010 and the claim form was in time. It may be wrong to take this from the Respondent’s account but in least in respect of the earlier date, 7 April 2010, the Employment Tribunal failed to make a finding about this.
25. This would not get the Claimant over the jurisdiction point but it would shorten the period during which the Tribunal was required to consider what was just and equitable in that the claim form should on that hypothesis had been submitted on 6 July 2010 when it was submitted on 15 July 2010. When it came to the exercise of discretion, the Tribunal did not consider the administrative point the Claimant had made in writing which was that had he been told on 16 June 2010 that he had not presented the form he would have done so on that day. It follows that he would have done so at some stage before 6 July, on the hypothesis that time began to run on 7 April 2010. The point is that an administrative and/or a judicial decision had been made to reject his claim for want of the proper form at some stage after its submission on 15 June 2010 but that was not communicated to him until 14 July 2010, the day after he chased the Tribunal. The Tribunal simply did not answer the Claimant’s complaint about this when considering what was just and equitable. What it did consider was the lateness, it was a month out of time on the Tribunal’s finding and that the Claimant knew about the prescribed forms and the three month time limit. It appeared to be critical of him in that ‘he must have known the form would not be accepted’. That it seems to us is an absurd position as the Claimant remonstrates with us, for why would he submit a form knowing it would be doomed to failure?
26. In fact the Claimant made four written submissions as to the exercise of discretion in his favour. The most telling was that there was an on-going internal grievance procedure. The Respondent had sought a stay in the proceedings and achieved in fact a 9 month delay in submitting its ET3 on the ground that the matters, the substance effectively of the claim, were part of an on-going grievance procedure. So delay, and any prejudice to the Respondent, were dealt with by that application of the Respondent for a stay which was in fact refused. The Claimant also contended that he is a lay person but the Tribunal obviously knew that, and he contended that he was suffering from the effects of medication. None of these is dealt with nor is the list of features set out in British Coal Corporation v Keeble [1997] IRLR 336 which has relevance to the present case including the length and reasons for delay and the extent to which the cogency of the evidence is likely to be affected by the delay. The Tribunal acknowledged that he acted promptly once he knew of the problem. He did not have professional advice.
27. In our judgment the combination of the misapprehension as to the dates and the failure to consider the Claimant’s case as to the exercise of discretion would mean the judgment was set aside and would have to be re-heard by an Employment Tribunal. Arguably, we could make the decision but as will appear from what follows this is unnecessary. The Claimant has a much better point which can be decided as a matter of law by the EAT.
28. The Employment Tribunal made an error in paragraph 19 above but we think this means the contention of the Respondent that there was no continuing act. The Respondent’s written case is that indeed in the language of the Employment Tribunal that there are disparate matters and that there was no link between the rejection by Ms Isaacs of the Claimant’s application for transfer and the other events. That is taken from paragraphs 7 and 8 of the ET3 and is based upon a contention that there was no ‘course of conduct’ by the Respondent capable of being a continuing act. What the Tribunal should have been looking for when it considered Aziz v FDA [2010] EWCA Civ 304, before finding it did not assist the Claimant, is ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’. There the court approved the judgment in Lyfar v Brighton & Sussex University Hospitals Trust [2006] EWCA Civ 1548 and followed Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 CA to the effect that one is not looking for a policy rule, scheme, regime or practice in a literal sense but whether there was an on-going situation or a continuing state of affairs. It follows from that approach that if there are ‘disparate matters’ they can still constitute a state of affairs.
29. In our judgment the claim form itself reveals precisely the claim based upon a continuing state of affairs which would fit the statute. The Claimant contends that his applications for transfer and promotion were repeatedly refused and they were refused for the most part by his manager AR and these were approved by Mr Hindmarsh and all of these contends were affected by in part by the Claimant’s health. The very fact that he was invited to submit a consolidated grievance indicates a connection between the various events. His claim form expressly asserts that the acts extended over a period and continued up to the time of writing the claim form and that these acts are attributable by the Claimant to succeed in his case which was rejected by the Soulsby Tribunal and appeals were rejected by the EAT and the Court of Appeal. He expressly refers to on-going grievances and to the fact that they are continuing to be investigated by the Respondent. His own table describes ‘a sequence of events’ from 23 September 2008 to 7 April 2010, but the matter is taken further by the Respondent in that it acknowledges in is amended response that for example, on 3 November 2009 ‘the Claimant was informed that it would not be possible for him to take on acting ‘floor CIO duties’ now or in the foreseeable future’. The Respondent uses the word ‘again’ on many occasions in this table including for example, ‘again this is said to be an act of victimisation’. The request for the Claimant to consolidate his six previous grievances came from the manager Mr Hindmarsh. The Respondent’s application for a stay included the following:
“The Claimant had lodged a number of internal grievances which on the face of it relate to the subject matter of this claim.
The grievances are currently under investigation by the Respondent and it is anticipated that the investigating officer will provide her report in the early part of September 2010.
The Respondent considers it appropriate to await the findings of fact arising out of this investigation given the proximity to this claim before setting out a fully pleaded response.”
30. In light of those assertions, it is difficult to see how the Respondent could put forward its contention that there was no continuing act; and difficult to see why the Employment Tribunal should entertain it. In our judgment the Claimant is correct when he asserts that there are common themes running through his claim and common personalities. The wish of the Respondent to deal with the matters holistically is itself recognition of the continuing nature of the Claimant’s complaint. In our judgment Lady Smith was correct in sending this matter to a full hearing for she has already decided in Kaur v Edinburgh City Council UKEATS/0015/11 that evidence should be heard at a full hearing to determine whether there is an arguable link between the events the Claimant cites. This is a correct application of the judgment of Mummery LJ at paragraph 34 of Arthur v London Eastern Railway [2007] ICR 193 and paragraphs 48-52 of Hendricks, all that it is necessary is for him to show that it is reasonably arguable that they constitute a state of affairs and that this matter should be heard at the same time as the Tribunal determines the full case. For the purpose of our hearing, we hold the Claimant has established that he is alleging a continuing state of affairs relating to disability discrimination and/or victimisation. In the three months prior to 15 July 2010 when the claim was lodged. The effect is this claim must be heard at a full hearing where the historical reach of this state of affairs will be the subject of findings of fact.
31. At its very least, the Claimant was complaining about a state of affairs which the Respondent was in the process of investigating during the three months prior to July 15 2010. That is a decision we can reach by reference to the papers without remission to the Employment Tribunal but if we are wrong about that, at the moment the case should go back for a full merits hearing where the continuing act can be decided.
32. There is no utility in sending the first time point above to a fresh PHR.
Issue estoppel
33. The Employment Tribunal determined that it had no jurisdiction to hear the Claimant’s present claim because if not out of time it was barred by the doctrine of issue estoppel. The Zuke Tribunal on 11 July 2005 had determined that the Claimant was not disabled by reason of dyslexia, the sole claim put to it. The Soulsby Tribunal on 13 November 2007 found that on the Claimant’s claim there was no change in circumstances sufficient to avoid the doctrine of issue estoppel. The Claimant’s primary contention was that his work role had changed. The Soulsby Tribunal found that there was no significant change in that role and that issue estoppel did apply – see paragraph 8 of Judge Ansell’s judgment on appeal. On appeal to the Court of Appeal the issue was whether dyslexia and dyspraxia were covered by the 2005 Zuke Tribunal findings. Elias LJ found they were.
34. The Claimant in the current proceedings seeks to contend that he is disabled by virtue of dyslexia, dyspraxia and depression. At first sight therefore, this is a materially different disability since the connection between dyslexia and depression did not appear in the previous proceedings. Our first impression is borne out by the authorities and by a consideration of the DDA. This is the starting point. The question for the Tribunal was whether the Claimant was disabled in the way prescribed by section 1 of and Schedule 1 to the Act. This has to be decided as at the material time that is when the adverse act or omission occurred. In order to assess whether a person has an impairment which has a substantial effect on that person’s ability to carry out day to day activities it is necessary, where there is more than one impairment, to ‘add up the component parts and see whether it amounts to more than individual parts taken separately’ – Ginn v Tesco Stores Ltd UKEAT/0197/05 per HHJ Ansell, followed and applied in Patel v Oldham Metropolitan Borough Council [2010] ICR 603 at para. 7 per Slade J. Where measures are being taken to prevent adverse effects of an impairment the correct approach is to see whether the adverse effects ‘could well’ be substantial in the absence of those measures: Boyle v SCA Packaging [2009] ICR 1056 HL.
35. In looking at whether the adverse effects are substantial it is necessary to consider whether the Claimant’s work activities including promotion without reasonable adjustments being made has an effect upon those activities: Paterson (above) at paras. 25, 66 and 62 per Elias P.
36. As Elias LJ noted (see the extract in para 14 above) there needs to be finality in litigation and although Paterson may be a way of opening the door for the Claimant based on different conditions at work in respect of his dyslexia and dyspraxia, that opportunity probably is now no longer available. That does not deal with the aggregate of the conditions with depression.
37. The legal basis of the doctrine of issue estoppel has most recently and authoritatively been set out in Bon Groundwork Ltd v Foster [2012] EWCA Civ 252 in the judgment of Elias LJ who said this:
“4. …the relevant legal principles are not in dispute, I will set them out briefly. The principle of res judicata can be summarised as follows: where an issue has been litigated before a judicial body and determined as between the parties, it cannot be re-opened. It is binding as between them and the parties are estopped from re-opening it. The issue may be one of fact or of law. However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim. In Arnold v. National Westminster Bank plc [1991] 2 AC 93 Lord Keith of Kinkel observed that the principle applies where:
‘... a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.’
38. The burden of establishing the identity of the issue rests on the party seeking to rely upon it: see Turner v London Transport Executive [1977] ICR 952 at 946G per Browne LJ. In the same case, Geoffrey Lane LJ at 966F said that issue estoppel:
“Might all too easily become a source of injustice rather than a benefit to litigants. Quite apart from other considerations of which there are many in this field of law, a case of issue estoppel cannot begin to be established unless it can be ascertained with some degree of precision what it was that the dominant judgment in fact decided. The less formal the proceedings are in any particular case the more difficult becomes the task of deciding what the issues were.”
39. Further, it is a tool to be used with great caution: Friend v Civil Aviation Authority [2006] ICR 525 at paragraph 42 per Chadwick LJ.
40. The authorities also deal with situations where a condition is described and adjudicated upon which is alterable. So in Mills v Cooper [1967] 2 QB 459 there was neither issue estoppel nor abuse of process when Magistrates’ Courts were asked to decide within three months of each other whether the defendant in a criminal proceeding was a gypsy:
“Once it is recognised that being a gypsy is not an unalterable status… it is plain that the incorrectness of the assertion made in the previous proceedings is not inconsistent with the correctness of the assertion made in the proceedings now under appeal.”
Per Diplock LJ at 470 and per Lord Parker CJ at 467.
41. The Claimant’s simple thesis in this case is that he has become depressed as a result of the way in which he has been treated by his employers and that in turn is a reflection on his disability (in the non-statutory sense) of dyslexia and dyspraxia. The factual basis for that contention is, he says, found and accepted in the utterances of those acting and giving advice for the Respondent. To this end he relies on a report of Dr Slavin, a consultant occupational physician, given to the Respondent on 22 October 2009. Dr Slavin analysed the earlier reports relating to the Claimant’s learning disability and he came to the conclusion:
“…it seems that there may be difficulties with his employment and it is up to the line management to form a view whether these reasonable adjustments – which are clearly appropriate given his medical condition which is likely to be covered by disability legislation – are tolerable or not. It is for line management to balance their duty of care when they have one employee with a disability versus the requirements and needs of the business as a whole.
Typically one may advise more backroom or administrative duties to immigration officers who are finding their substantive role difficult but in this case that may not be to his advantage. One way forward would be to consider workplace risk assessment conducted either by an occupational health nurse or an occupational health physician walking through the tasks. A reasonable adjustment would also include extra training and an acceptance of slightly reduced work output in the role.”
42. A year later on 15 December 2010 Ms Kearney, an occupational health adviser, was reporting to the Respondent in the following terms:
· “Disability legislation implications:
It is difficult to say if the Disability provisions of the Equality Act will apply to Mr XX’s depression. His symptoms have been present for more than 12 months and do appear to be ongoing. They also have a significant impact on his functioning on a frequent basis and in this respect the condition would qualify. However, if his work issues could be resolved then Mr XX’s depression would be expected to resolve. As you may be aware it is legal decision rather than a medical decision to determine if the legislation applies but I think in a case where there is any doubt it would be considered best practice to act as if the legislation would apply.
Whilst Mr XX’s depression is ongoing he remains vulnerable to future related sickness absence compared to his unaffected peer group.”
43. On 23 November 2010 he had a significant event diagnosed as a depressive illness keeping him off work for six week and treatment by Dr Desai who had concluded by 11 March 2011:
“He is at risk of relapsing into more risk and severe symptoms if there is deterioration in his depressive illness, significant stressors at work can increase such risk of relapse. I would therefore be grateful if the occupational health department and his managers could support him to adjust his work environment to allow him to work with less amount of stress in his work place…”
44. It seems plain to us that none of the above medical material was in play before the 2005 Zuke Tribunal and the 2007 Soulsby Tribunal. In essence, the present Tribunal’s rejection of the claim on the grounds of adjudication due to issue estoppel is based upon the findings of the 2005 Zuke Tribunal. By the time this claim was presented in July 2011 the medical evidence indicates very significant changes in the Claimant’s presentation and the way in which work was organised around him. The Claimant is not entitled to go behind the findings of the 2005 Zuke Tribunal, particularly as reinforced by the Soulsby Tribunal and the upholding of that by the EAT and the Court of Appeal, he is entitled to have considered the aggregate of the conditions which he now presents i.e. dyslexia, dyspraxia and depression and it is the impairment or impairments caused by the aggregate of those conditions which is to be tested under the terms of the statute. The Employment Tribunal appears to have entered into the merits of the discussion when considering the severity of the symptoms. That was not the task set for it: it was to decide whether within the doctrine of issue estoppel the condition which the Claimant presented as being disability in 2011 was the same condition upon which there had been an adjudication in 2005. Thus we return to our first impression. It is fully borne out by an examination of the detail of the medical evidence so that it is obvious that there was far more in the 2011 claim than there was in the 2005 adjudication. The Employment Tribunal failed to apply the test of whether the Claimant had an unalterable status.
Disability
45. As we have decided above, the Tribunal did have jurisdiction to decide the Claimant’s disability claim. It gave itself that task but having decided on jurisdiction against the Claimant it held that it need not consider disability. That issue now revives and should be determined by an Employment Tribunal. Given the two errors on jurisdiction we have identified, and the Tribunal’s indication that the Claimant would have difficulty in establishing that he is disabled, it would not be fair to this Tribunal or to the parties to ask the same constitution to consider at a full hearing the continuing act point and the disability point and thereafter the substantive claim.
Other grounds
46. A number of other grounds were argued before us on paper but it is not necessary for us to decide those in the light of our findings above. This case will now be remitted to a differently constituted Employment Tribunal for a full hearing of the whole of the Claimant’s case.