Appeal No.	EAT/1408/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR S M SPRINGER MBE

DR J B ILANGARATNE	APPELLANT

THE BRITISH MEDICAL ASSOCIATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR O SEGAL
(OF COUNSEL)
Instructed by
Messrs Gosschalks
Queens Gardens
Hull HU1 3DZ	

	JUDGE PETER CLARK:	In this case Dr Ilangaratne brought complaints of unjustifiable discipline by his Trade Union, the Respondent (“BMA”) and disability and/or racial discrimination/victimisation.  The complaints under the Race Relations Act were added by amendment.  All complaints were dismissed by an Employment Tribunal sitting at London (North) on 5th and 6th October 1998 by a Reserved Decision dated 13th October.  In this appeal we are concerned only with the complaints of disability discrimination.  

	In brief, the Appellant has since 1994 suffered from a depressive illness.  It is common ground that he is disabled within the meaning of Section 1 of the 1995 Act.  He was then employed as Principal Medical Officer at the Wolds Prison on Humberside.  That employment has since ceased.  He enlisted the aid of the Respondent to pursue a personal injury claim against his former employers.  He was dissatisfied with the advice which he received.  Eventually, the Respondent terminated his legal assistance on the grounds that he had lost trust in his legal adviser.  The Tribunal found that the solicitor, Mrs Granville had done her best for her client but Counsel had advised that the Appellant’s claim did not have a reasonable prospect of success and that the Appellant had not been treated less favourably, either on the grounds of his race or disability.

	In a letter commenting on the grounds of appeal as then constituted the Chairman, Mr D H Roose, observed that there was no reference to any comparators who had been treated better in the circumstances in which the Appellant found himself.

	In this appeal the original grounds of appeal raised complaints of perversity and secondly, failure to give adequate reasons for the Tribunal’s decision to dismiss the disability discrimination complaint.  Today, Mr Segal appears on behalf of the Appellant and has sought and been granted leave to amend the Notice of Appeal to add a third ground.  That ground is formulated in this way.

“In any event, the Tribunal erred in law in rejecting the Appellant’s claim for disability discrimination solely on the basis that the Respondent would have treated a non-disabled person in the same way in the same circumstances.  The correct question being whether the Respondent would have treated someone to whom the material reason relating to the Appellant’s disability did not apply in the same way.”

	In making that submission, Mr Segal draws attention to the recent decision of the Court of Appeal in Clark -v- Novacold [1999] IRLR 318 in which an appeal against the earlier decision of this Employment Appeal Tribunal, President, Morison P presiding, reported at [1998] IRLR 420, was allowed.  In the Employment Appeal Tribunal it was held necessary for there to be a comparison made between the Applicant and someone who was off work for the same amount of time but for a reason other than disability.  That comparative exercise was disapproved by the Court of Appeal.  In the present case, at para 16 of the Tribunal’s Reasons, they direct themselves as to discrimination by reference to the well-known Race Discrimination case of King & Great Britain -v- China Centre [1992] ICR 516 and The House of Lords decision Zafar -v- Glasgow City Council [1998] IRLR 36.  The self-direction is plainly correct in terms of a complaint of racial or sex discrimination but in the light of the different wording under the Disability Discrimination Act and the approach of the Court of Appeal in Clark -v- Novacold it is arguable, for the purposes of this appeal, that the Tribunal has misdirected itself in law.  

	The direction which it gave itself was this.  In relation to direct discrimination the question is whether the Applicant is treated less favourably than the Respondent treated or would have treated another person of a different racial or non-disabled group in the same or relatively similar circumstances, and if so, was that less favourable treatment on racial grounds or by reason of the fact that the Applicant is a disabled person.

	It seems to us in the light of the Court of Appeal’s decision in Clark -v- Novacold that this further ground of appeal ought to proceed to a full appeal hearing and we so direct.  As to the two original grounds of appeal, although they have been developed by Mr Segal, we are not persuaded that the arguments as to perversity or inadequacy of reason raise a sufficiently arguable point to proceed to a full hearing.  In these circumstances, we shall delete the two existing grounds of appeal and substitute the third ground of appeal in respect of which leave has been granted.  For the purpose of the full appeal hearing we direct that the case be listed for half a day, category B.  There will be exchange of skeleton arguments between the parties not less that 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged at the same time with this Tribunal.  There are no further directions.