Appeal No. EAT/1400/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MR I EZEKIEL
MR R SANDERSON OBE

MRS P B COLLETT	APPELLANT

DIOCESE OF HALLAM TRUSTEE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised 29/5/02

	APPEARANCES

For the Appellant	MISS K MONAGHAN
(of Counsel)
Instructed by:
Mr K Woodhouse
Sheffield Law Centre
Waverley House
10 Joiner Street
Sheffield S3 8GW	
For the Respondents	No appearance or
representation by or 
on behalf of the Respondents

JUDGE D PUGSLEY

1	In this case we are grateful for the very skilled advocacy we have received from Miss Monaghan.  The lot of a Tribunal Chairman and Members is not an easy one to discharge.  We are well aware of the difficulties there are, and life is much easier, if we may say so, sitting in judgment on others, than actually being involved in making the judgment at first instance.   

2	But in this case we are concerned that the way in which this case has been put in the Decision has not enabled the parties to fully see, as required by the case of  Meek v City of Birmingham [1987] IRLR 250, the full basis of why they have won or, as appropriate, why they have lost with sufficient particularity what matters were accepted by the Tribunal and what were not.

3	This is a sad case on any view of the matter; sad for the Applicant and sad, no doubt, for the Respondents, to be the subject of an allegation such as this.  We have a Skeleton Argument from the Respondents; we have not been favoured by an appearance.  We understand they are not coming, no doubt, as grounds of cost are a heavy consideration.  

4	The difficulties arose when this Applicant had two jobs, both part-time, and she was dismissed from both at different times.  She put an Originating Application into the Tribunal in respect of both dismissals; she did not have, Miss Monaghan tells us and we are sure she is right, sufficient continuity of service, as the law then stood, to bring an unfair dismissal in either case.  We note that the reason for dismissal in the Notice of Appearance was very much based on the lack of capability to do the job; it talks about her inaccuracies and her slow speeds at typing.  

5	The Tribunal found the Applicant an honest witness and they gave a brief history of the background.  The Applicant had been suffering from problems with her back which caused her substantial pain and affected her day-to-day life in the home and outside.  

6	The Tribunal identified the issue and then proceeded to decide that at the time when the Applicant was dismissed, she did not see herself as a person suffering from a disability, and she had:
“…….. no reason to expect that the bad back was going to continue for any great length of time, nor that it was going to recur with frequency.  She might have another problem in 6 years time” 
[the Tribunal noted]
“ but she accepts that that would be the ‘luck of the draw’ 
[see paragraph 13]
That, the Tribunal opined, was the picture in February and March 1999.  She was dismissed on March 11th 1999.

7	The Tribunal then went on to say this:
“It is only much later as well after the contract of employment had ceased that it becomes apparent that what subsequently happened could make her disabled.  We accept Mr Green’s argument that what we have to look for is a disablement at the time of the complaint.  At the time of the complaint this applicant was not disabled.  At the time of the hearing, that is 14 months later, on the facts we have heard because we believe her evidence she had been suffering from well over 12 months.  As of today we would find she was probably disabled.  We believe it to be the test as of the date of the complaint, when there was no disability.  As there is no disability this case fails.”
That quotation of the Decision has to be looked at by the Supplementary Extended Reasons where the Tribunal of the Review said in terms that although they had not been referred to the Notes of Guidance, nevertheless, it is suggested in that Decision that they did have them in mind.  

8	The Tribunal says this, in its Extended Reasons Review Decision, promulgated on 5 February 2001:
“8   At the hearing the applicant did not refer us to the Secretary of State’s guidelines. The respondent through their solicitor did not either.  We did not refer to them.  However, what we did not do in our decision was to exclude from our ‘assessment’ of whether there was an impairment, events subsequent to the alleged discrimination.  We knew that we were to take into account subsequent events.  That is why we took them into account.
9.  The issue of the date concerned us.  It seemed to us the test was the date of the discrimination not the date of the hearing.  That is the logic of our decision.  
10.  What the applicant says is that the Secretary of State’s guidance says that in our assessment we should take into account events that have taken place afterwards.  Whilst we were not specifically referred to them or heard arguments on the guidelines, we nevertheless took into account ourselves the factors we believe the Secretary of State wants us to consider.  We do not think on reflection that we came to a perverse decision if the test is was she disabled at the time of the alleged discrimination.”
At paragraph 11 the Tribunal say this:
“11. We think that this is a case which should go the EAT to argue.  The Greenwood case put forward by the applicant is now being given we think far wider application than the facts would warrant.  As always cases depend upon their facts.  In the Greenwood case an aircraft loader who for many years had been clinically depressed (and was therefore disabled) was eventually signed off by the firms doctor.  The company had recognised disablement.  He then applied for promotion.  He was refused promotion.  Not surprisingly he became depressed again.  There you have a history of before and after where the person continues in a clinical depression.  Here in this case you have a person who is not known to be disabled or to have any symptoms of chronic disability before the alleged discrimination.  It is only since that it has become chronic”
It goes on to say:
“12.  Those different set of facts needs a closer look by those more skilled than us.  Whilst we are ready to accept robust criticism we do think that the Act means to cover ‘retrospective’ discrimination.”

9	Well, in a nutshell, and I hope we do not do violence to Miss Monaghan’s argument, we think she does raise serious issues about the adequacy of this Decision.  Section 1 of the Disability Discrimination Act 1995 defines discrimination, for the purpose of the Act:
“Subject to the provisions of Schedule 1, a person as 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.”

Schedule 1 gives further meaning to the terms of Schedule 1.  Paragraph 2(1) provides:
“The effect of an impairment is a long-term effect if -
(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.”
Section 3 of the Acts provides for this issuing of guidance about those matters to be taken into account in determining:
“(a) whether an impairment has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities; or
(b) whether such an impairment has a long-term effect.”
Section 3(3) of the Act says this:
“A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities, shall take into account any guidance which appears to be relevant.”
Guidance has been issued under Statute SI 1996/1996.  

10	The Applicant urges on us this: the Applicant, notwithstanding the mention in the review decision did not take into account the Guidance, in particular Part II B, paragraph 8 which provides that:
“in assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists.  This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards.”

It was pointed out that according to the decision of Morison J, Goodwin -v- the Patent Office [1999] IRLR 4 at paragraph 23, the failure to refer to the Guidance is in itself inadequate, having regard to Rule 10(4) of the Employment Tribunal (Constitution etc) Regulations, and the case of Meek is cited.  The Tribunal erred in error because it is said that it found in paragraph 13, page 7:
“13….… as a fact that, ….. the Appellant had been suffering from an acute back condition ‘for well over twelve months’ [and] As of today we would find she was probably disabled” 

It is argued that because it did not construe Part II B, the paragraph for guidance, and referred to the case of Greenwood -v- British Airways PLC [1999] ICR 969 @ 977 the Tribunal fell into error.  That said, in the penultimate part of the judgment:
“In our judgment the tribunal fell into error by considering the question of disability only as at the date of the discriminatory act.  We are quite satisfied, as the Guidance makes clear, that the Tribunal should consider the adverse effects of the applicants condition up to and including the we employment tribunal hearing.”

11	We do not accept, if we may say so, that that case is an authority for saying that we should substitute our view and make a finding of disability.  We think that is a tempting but fallacious interpretation of the Greenwood case.  On closer analysis of the words of His Honour Judge Clark, the appeal was allowed and they declared the Applicant was a person who had a disability within the meaning of Section 2 of the Act of 1995.  It was not therefore necessary for them to determine the question on the factual findings, the adverse effects of the requirement pursuant to the purposes of Section 1, Schedule 1.  It is fair to say that Miss Monaghan accepts that perhaps she had, quite inadvertently, overstated the position when she invited us to allow the appeal, to the extent of substituting our own view.  We note the argument raised in the Respondent’s Skeleton Argument in this case.    

12	Looking at the overall picture, bearing in mind the way in which Miss Monaghan has put the case, the question of the employer’s knowledge can be highly relevant, as was made clear in the decision of Mr Justice Lindsay in Heinz Co Ltd-v- Kenrick  [2000] IRLR 144 to the question of justifiability as to making arrangements.  We have come to the view that this appeal should be allowed and remitted to another Tribunal.  The Tribunal did not adequately analyse the issue in the light of the Guidance issued.  

13	We urge with all the passion and all the authority which we are endowed with, that what Miss Monaghan has urged on us is what happens; that this case is heard on the merits.  I say at the express behest of the members of the Tribunal that we are castrating the proper role of Tribunals by dividing up cases into separate issues.  It adds to expense, it causes stress and strain; it emasculates the noble vision of Tribunals in being able to give a judgment which was expeditious, economic and accessible.  We see no need at all for there to be numerous Tribunal hearings with the occasional yo-yo up to the Employment Appeal Tribunal, and perhaps, for the adventurous even further, before landing back years later into the lap of the Industrial Tribunal from which it started.  

14	In our view, the Tribunal ought to decide whether, the Applicant was disabled and, if so, go on to decide the whole question on the merits. Let the case be heard on its merits, deciding whether or not the person was disabled, together with the other issues of the case, rather than putting these matters into discrete parts with enormous long intervals between the resolution of those issues.  We allow the appeal and direct it to be remitted to be heard before a differently constituted Tribunal.