Appeal No.	 EAT/0546/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2001

Before
MS RECORDER COX QC
MR P R A JACQUES CBE
MR J R RIVERS

OVUM LTD	APPELLANT

MR R TUCKETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS R TUCK
(of Counsel)
Messrs Royds Treadwell
Solicitors
2 Crane Court
Fleet Street
London EC4A 2BL	
For the Respondent	The Respondent in Person

MS RECORDER COX QC

1	This is an appeal from an Interlocutory decision of a Chairman at the London Central Employment Tribunal dated 26 April of this year.  The matter is urgent because the hearing in this case is presently scheduled to start on 23 May for three days.  This morning the Appellant was represented by Miss Tuck of Counsel and the Respondent, Mr Tuckett represented himself.

2	The issue before us arises in this way.  The Applicant (the Respondent to this appeal) issued an originating application dated 16 June 2000 complaining to the Employment Tribunal of unlawful disability discrimination resulting in his dismissal, contrary to the Disability Discrimination Act 1995.  His former employers, the Appellant before us, resist the complaint.  

3	In the original notice of appearance at paragraph 3, it was specifically denied that the Applicant had a disability within the meaning of the Disability Discrimination Act.  However, matters then changed.  There was a hearing for directions held on 14 September at which it was made clear that the Appellant had decided to concede that the Applicant had a disability for the purposes of the Act.  This hearing followed the Appellant’s letter of 13 September, to the Tribunal, in which it was said:

“Further to our letter of 12 September 2000 requesting an order for disclosure of the Applicant’s medical evidence, we have now received copies of these from the Applicant.  In the light of the Applicant’s evidence, the Respondent is prepared to accept that the Applicant does have a disability for the purposes of the Disability Discrimination Act 1995.”

The Tribunal’s letter of 20 September following the directions hearing, records at paragraph 1(a)(ii):

“The Chairman gave the Respondent leave to amend its Notice of Appearance in the light of its acceptance that the Applicant has a disability under the 1995 Act.  The amended Notice of Appearance was lodged with the Tribunal.  The Respondent denies that its treatment of the Applicant or the reasons for his dismissal were in any way due to the state of his health.  The stated reason for the dismissal was the Applicant’s alleged lack of competence and inability to perform the duties of his job – ie  capability.”

4	The matter was subsequently fixed for three days, to be heard as we have indicated starting on 23rd of this month.  On 13 March 2001 the Appellant’s solicitors wrote to the Employment Tribunal requesting that a Preliminary Hearing be held to consider an application that the concession made the previous September be withdrawn.  That application was refused by a Chairman and was communicated to the Appellant’s solicitors in a letter dated 26 April 2001.  It is that decision which is the subject of this appeal.

5	The reasons given for refusing the Appellant’s application were stated to be these:

“Concessions should not be made lightly, particularly where the party making the concession is represented by competent legal representatives and to allow the withdrawal of the concession on an application made six months after the directions hearing and after the timetable had been fixed and just two months before the hearing in May 2001 will be unfair to the Applicant and will cause considerable delay in getting the case to a full merits hearing.  Allowing the Respondent to withdraw the concession will inevitably require a fresh directions hearing and a new timetable.”

In the notice of appeal, filed by the Appellant’s solicitors, the Appellant contends that there was an error of law made by the Chairman in arriving at that decision on the basis that this is a jurisdictional issue.  It is argued that the Employment Tribunal only had jurisdiction to hear the Applicant’s complaint if he is a person who suffers from a disability within the meaning of the Act and that no party can, simply by making a concession, confer a jurisdiction onto the Tribunal which it would not otherwise have.  Reliance is placed on the case of the Writers Guild of Great Britain and another v  BBC reported in 1974 at 1All ER 574.  However, we do not consider that this is a matter which goes to the jurisdiction of the Employment Tribunal and we do not consider that the Writers Guild case gives us any assistance in determining the issue that arises in this case under the Disability Discrimination Act.  We paid particular regard to the recent decision of Goodwin v The Patent Office (1999) IRLR page 4 and to the guidance that was given by this Appeal Tribunal as to the approach that Employment Tribunals should adopt when dealing with cases brought under the Disability Discrimination Act, and in particular guidance as to how they should approach issues which arise under Section 1 of that Act, namely the Section which gives the definition of a “disabled person”.

6	At paragraph 21 of that judgment the Employment Appeal Tribunal said:

“The role of the Industrial Tribunal contains an inquisitorial element as Rule 9 of their Rules of Procedure indicates.  The interventionist role which they have in relation to equal value claims and which is more clearly set out in the Rules contained in Schedule of the Procedural Rules, might be thought a good model for disability cases.”

It seems to us that, in order to succeed in a complaint of unlawful disability discrimination, an Applicant must bring himself within the statutory provisions and surmount a number of hurdles.  One of these hurdles is that it must be proved that the Applicant is a disabled person within the meaning of Section 1 of the Act.  An Applicant will seek to prove this through his own evidence and, no doubt, medical evidence.  Sometimes expert medical witnesses will be called to give evidence on behalf of an Applicant on this issue.  An Employment Tribunal will make such enquires as they deem appropriate in order to decide whether an Applicant has satisfied the test in Section 1 of the Act.

7	In some instances, in the course of preparing for a hearing, a concession can be made by the employer that the Applicant is a disabled person within the meaning of the Act.  Such a concession was clearly made in this case, at a time when the Appellant was represented by solicitors, and the parties have since then prepared for the hearing on the basis that that issue would not be a matter in dispute as between the parties.

8	We therefore conclude that this is not a jurisdictional issue but rather an evidential one and we see no error of law made by the Chairman in concluding that the Appellant was bound by that concession and could not apply some six months later to withdraw it.  In the recent letter of 15 May from the Tribunal to the Appellant’s solicitors, a Chairman has given further information on this issue at paragraph 2 of that letter, where it is said that:

“The issue of the leave to withdraw the concession does not go to the issue of the Tribunal’s jurisdiction.  Concession or no concession the Tribunal has jurisdiction to hear the Applicant’s disability discrimination case and the issue of disability will be an issue for the Tribunal to decide having heard all the evidence.”

We take the view that that accurately describes the role of the Employment Tribunal at the forthcoming hearing.  It does not mean that the refusal to allow the Appellant to withdraw a concession made as long ago as September 2000 was erroneous.

9	In all the circumstances, particularly since there is no suggestion made in the notice of appeal or in oral submissions today that the Chairman’s decision was perverse or amounted to a wrong exercise of his discretion, this appeal must be dismissed and the hearing should go ahead as a full hearing starting on 23 May.