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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough of Redbridge v. Baynes [2009] UKEAT 0293_09_1211 (12 November 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0293_09_1211.html Cite as: [2009] UKEAT 0293_09_1211, [2009] UKEAT 293_9_1211 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MATTHEW PURCHASE (of Counsel) Instructed by: London Borough of Redbridge Legal & Constitutional Services 128-142 High Road Town Hall Ilford IG1 1DD |
For the Respondent | MS SABRINA SULLIVAN (Representative) Disability Law Alliance 39-45 Cavell Street London E1 2BP |
SUMMARY
DISABILITY DISCRIMINATION
Disability
Employment Judge erred in finding that the Claimant was disabled in the face of the Claimant's assertions that she was not disabled and in the absence of any medical evidence. He was therefore in error in allowing the claim for disability discrimination to be brought out of time. The EAT refused to permit the Claimant to withdraw her concession that she was not disabled: Jones v The Governing Body of Burdett Coutts School [1998] IRLR 521 applied.
HIS HONOUR JUDGE BIRTLES
Introduction
The Material Facts
"… I have taken legal advice from Mr Morris at Morris and Co Solicitors of Chelmsford ..."
"On various occasions from September 2002 until February 2008 my manager, Mr Terry Bowe, constantly and openly referred to, what he called 'my disability', i.e. my vision. Despite me being certified in writing from Moorfields Eye Hospital as being 100% fit for my duties."
"1. I am not disabled. My Manager was the one who called the loss of sight in my right eye a disability.
i) The condition from which I suffer causes no physical or mental impairment.
v(f) - eyesight. As always stated, this had no effect on my normal day-to-day activities and which was confirmed by Moorfields Eye Hospital.
2. As I have always stated, I do not have a disability. It was my Manager who called the loss of my sight in my right eye a disability and therefore said that I was not able to do my usual day to day activities."
"Employment Judge Gilbert has directed me to inform both parties that a Pre Hearing review was set up in this case to consider whether the Claimant had submitted her complaints of constructive dismissal and unfair dismissal and disability discrimination in time.
The Claimant has now submitted additional information about her disability and says she is not disabled."
"Can the Claimant please say how she is pursuing a claim under the Disability Discrimination Act if she does not have a disability.
Please reply on or before 5 March 2009."
"… the facts upon which you rely in stating you are a disabled person ..."
"1. I was advised by the Citizens Advice Bureau that I am classed as disabled as I only have the use of one eye. However, as I am able to carry out my day to day duties, I class myself as not being disabled. My loss of sight in my right eye was treated as a disability by my Manager. He changed my duties because he felt that I was no longer able to carry out my usual job. I feel that he discriminated against my sight. I did not realise that I had to be disabled as well to be discriminated against."
"v(f) - eyesight. As always stated, this had no effect on my normal day-to-day activities and which was confirmed by Moorfields Eye Hospital. It did not affect my speech or hearing.
(g) It did not affect my memory, concentration, learning or understanding.
2. As I have always stated, I have never felt that I am disabled. It was my Manager who called the loss of my sight in my right eye a disability and therefore said that I was not able to do my usual day to day activities.
3. I do not feel that this section applies to me because I do not have a disability so did not expect the London Borough of Redbridge to do anything for me. Unfortunately, it was LBR who treated me incorrectly by stating that I could not do my job due to my disability - a loss of sight in my right eye."
"The Tribunal's jurisdiction depends first on the Claimant being a disabled person for the purpose of the Disability Discrimination Act 1995. There is an initial difficulty here because the Claimant, who is a strong-minded person, and able-bodied in all respects but one, insists that she is not disabled (despite ticking the box on the ET1 to make a DDA claim). However, the Claimant has lost the sight of one eye. In my judgment and not withstanding the Claimant's proud stance in relation to this issue, the Claimant therefore has a physical impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities."
The Notice of Appeal
The Grounds of Appeal
"(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."
"(22) What the tribunal was going to decide, therefore, was whether Ms Boyle was a "disabled person" within the meaning of section 1(2) of the 1995 Act during the relevant period. If the tribunal decided that she was not, then that would be the end of the three complaints under the 1995 Act. If it decided that she was, it would have to go on to hear evidence on the substance of the three complaints.
(23) Mr Allen QC, who appeared for the Equality and Human Rights Commission, intervening in the absence of any representation for Ms Boyle before the House, described this issue as a "threshold issue". I should prefer to say that, since no one can be the victim of discrimination under the 1995 Act unless he or she is a "disabled person", whether or not the applicant is a disabled person is a key element in any complaint. In short, the Act applies because a person is disabled - not vice versa. As Mr Allen said, the equivalent questions are not usually contentious in sex discrimination or race discrimination cases. The 1995 Act is different in this respect: the definition of a "disabled person" for the purposes of the Act is elaborated in Schedule 1 and can give rise to quite complicated and potentially contentious issues. In this case one such issue is only now being finally resolved, many years after Ms Boyle's applications were lodged with the industrial tribunal."
Ground 1 - Decision Procedurally Unfair
"The decision was procedurally unfair in that the substantive issue as to whether the Claimant was or was not disabled was not listed as an issue to be determined at the Pre-Hearing Review. Accordingly, the Respondent had not had an opportunity to prepare to deal with the point."
Ground 2 - Deciding the Claimant was a Disabled Person
"The tribunal's decision was based on no evidence and/or was perverse in light of the Claimant's admissions and the absence of evidence to the contrary."
"… has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities."
in the light of the Respondent's assertions to the contrary.
Ground 3 - Ignoring the Claimant's Concession
"The Claimant's own case was that she was not a disabled person and/or that she made express admissions as to relevant facts which lead to the irresistible conclusion that she was not a disabled person. It is not permissible as a matter of law for the tribunal to go behind the Claimant's own case and admissions, particularly when she had been given a full opportunity to consider her position."
"As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more pro-active role in disability discrimination cases, as they can be complex and involve applicants, whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the Employment Tribunal as "inquisitorial" or as "pro-active." Its role is to adjudicate on disputes between the parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v. Staffordshire University [2002] ICR 475, 483, paragraph 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and the limited resources available to many parties in the employment tribunal. The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained on the issue of impairment."
"Despite me being certified in writing from Moorfields Eye Hospital as being 100% fit for my duties."
"(20) These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk, the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Newcastle, the Employment Appeal Tribunal (presided over by Talbot J) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer, this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302, 307, that is to follow:
'The well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below.'
(21) In this case the Employment Appeal Tribunal recognised that the consequence of allowing Mr Jones's appeal would be a new hearing with fresh evidence (so far as that can be an appropriate term for evidence given in 1998 of events of five years ago): [19971 ICR at pp:398—9. It was therefore a case in which the Employment Appeal Tribunal would have had to have exceptionally compelling reasons for taking such an unusual course. It is necessary to consider the course of the proceedings to see whether there were such compelling reasons."
Ground 4 - Just and Equitable
Disposal