APPEARANCES
| For the Appellant |
MISS LORNA FINDLAY
(of Counsel)
Instructed by:
Birmingham City Council Legal Services Department
Ingleby House
11-14 Cannon Street
Birmingham B2 5EN |
| For the Respondent |
MR MARTIN GAYLE
(Lay Representative)
|
SUMMARY
Practice and Procedure – Case management
Practice and Procedure – Bias, misconduct and procedural irregularity
Disability Discrimination Act (and other) claim. Issues identified at case management discussions and parties' list of issues. Case determined on issue raised by Employment Tribunal in closing argument. Chapman v Simon [1994] IRLR 124. Fairness to Respondent. Employment Tribunal jurisdiction to consider only claims before them.
HIS HONOUR JUDGE CLARK
- When is an issue not an issue? That is the question in this Appeal. The Parties before the Birmingham Employment Tribunal were Miss Marva Laws, Claimant, and Birmingham City Council, Respondent. We shall so describe them. The Appeal is brought by the Respondent against that part of the Judgment of the Tribunal chaired by Ms P M Hughes, promulgated with reasons on 8 May 2006 following a twelve day hearing, the first day of which was a Tribunal reading day, and then two days deliberation by the Tribunal in private, which found that the Respondent had unlawfully discriminated against the Claimant, their employee, contrary to the Disability Discrimination Act 1995 (DDA).
Background and Procedural History
- The Claimant, who is black, commenced employment in the Respondent's housing department in August 1995. She went off sick on 11 August 2003 and had not returned to work by the time of the Tribunal hearings in January to March 2006. She nevertheless remained in the Respondent's employment throughout that period. In common with other local authority employers' terms and conditions of employment, the Claimant was entitled to six months sick leave at full pay and six further months at half pay. When her contractual sick pay ran out she promptly presented a claim to the Employment Tribunal on 18 August 2004. She then represented herself. She listed her complaints as failure to provide a written pay statement, failure to pay remuneration while suspended on medical grounds, suffered detriments for other reasons, breach of contract. The claims were resisted.
- On 19 October 2004 the first of five case management discussions (CMDs) were held. The first three came before a Chairman Mr C J Goodyear, sitting alone, the fourth before Mr J Parkin, sitting with Members, after the Claimant's claim of unauthorised deductions from wages was dismissed by that Employment Tribunal, and the fifth before Mr Parkin, sitting alone. At the first CMD, by an order dated 25 October 2004, Mr Goodyear identified the Claimant's causes of action as follows:
(1) Failure to provide itemised pay statements
(2) Unauthorised deductions from wages
(3) Race discrimination
(4) Breach of contract
(5) Disability discrimination
- We should say at this stage that the complaints all failed, save in respect of disability discrimination. Our focus in the Appeal is therefore solely on the DDA claim. At paragraph 7 of his order dated 25 October 2004 (the first CMD order) the Chairman said this:
"7. Disability Discrimination: It was said at the case management conference that the case is as follows:
(a) At all times material for her complaint she has suffered from depression. She has therefore been a disabled person within the meaning of the Disability Discrimination Act 1996, (sic.) DDA.
(b) In February 2004 the Respondent offered her a number of posts which because of her disability were not suitable for her.
(c) The Respondent has since sought, without consultation, that the Claimant procure her retirement on grounds of ill health
(d) The matters at (b) and (c) above amount to direct discrimination for a reason related to the Claimant's disability, and/or a failure to make reasonable adjustments."
- Thus the issues to be resolved were: 1) Was the Claimant disabled within the meaning of the DDA? At the substantive hearing before the Hughes Tribunal the Respondent conceded that she was; 2) Did the respondent discriminate against her under the DDA in (i) offering her in February 2004 a number of posts, which, because of her disability, were not suitable for her (the unsuitable posts issue), and/or (ii) seeking to procure her ill-health retirement without consulting her (the ill-health retirement issue)?
- A second CMD was held before Mr Goodyear on 13 December 2004. On that occasion, by an order dated 14 December, at paragraph 6, the Chairman ordered that:
"The Claimant do by 10 January 2004 (sic.) serve and file full particulars of the adjustments to her working arrangements, which she contends should have been made in respect of the post offered to her in February 2004."
- It will be immediately apparent that those particulars were directed to the unsuitable posts issue. On 10 January 2005 the Claimant provided the particulars, purportedly pursuant to paragraph 6 of the second CMD order. Making all due allowance for the fact that the Claimant was then acting in person, the task she set herself in providing these particulars was not that required by the Chairman. The key lies in her opening statement to the thirteen numbered particulars. She said this:
"I have been asked to state what adjustments should have been made in regard to my redeployment within Birmingham City Council, both following the initial racial and physical attack (in about 1995/1996) and in returning to work since July 2003."
- That, of course, is far wider than the order contained at paragraph 6 of the second CMD order. As to that direction, paragraph 12 of those particulars states:
"In February 2003 (sic.) I was offered three unsuitable roles. One of which was working for the manager who had failed to support me when I was suffering racial and physical abuse from tenants. The other two involved visiting tenants in their own homes."
- The Claimant there identifies what she alleged were three unsuitable roles offered to her in, presumably, February 2004. Their unsuitability seems to be linked to her complain of racial, rather than disability discrimination. Then at paragraph 13 of the particulars she added:
"No positive moves have been made by my employer to resolve this situation before I can return to work. Due to past treatment I do not trust my employer to resolve issues when I am back in the workplace. I was told that the issues would be resolved once litigation was complete and this is all I have asked for. However, they have forced me to take this further as they will not redress the unfair treatment I have suffered at their hands. This could have been resolved long ago as I have given them every opportunity."
- A third CMD was held before Mr Goodyear on 11 February 2005. By an order of that date the Chairman again recorded the two disability discrimination issues earlier identified and at paragraph 5(d) refused the Claimant's application to amend her claim: a) to add dyslexia to her contention that she was disabled within the DDA, her original case being that her disability consisted of depression, and b) based also on her particulars of 11 January 2005, to rely on various matters prior to February 2004.
- Next, the fourth case management order, this time made by the Parkin Tribunal on 8 March 2005, directed at paragraph 8(2) that the parties agree, among other things, "the list of specific issues of fact and law".
- Finally Mr Parkin, sitting alone on 16 January 2006, made a fifth case management order. On that occasion, for the first time, Mr Gayle, a friend, represented the Claimant (he is not, he tells us, legally qualified or experienced). Under paragraph 4, headed Agreed List of Issues, the Chairman directed:
"The respondent is to serve a draft list of issues of law and fact on the Claimant by 3pm on Tuesday 17 January 2006. The Claimant is to agree the list of issues by 3pm on Thursday 19 January 2006."
- At that stage, the substantive hearing of the matter remained listed to commence on 23 January 2006. Mr Parkin also directed the parties to exchange and lodge Skeleton Arguments in advance of that hearing. As to the list of issues, the Respondent sent a drat list to the Claimant's representative on 17 January, which the Claimant, with assistance from her partner, amended and returned to the Respondent. Sixteen specific issues are there identified. Material to this Appeal are issues numbered 2 to 4. We should set them out in full, identifying the Respondent's formulation and the additional words from the Claimant's side.
"2. Whether in February 2004 the Respondent offered the Claimant a number of posts, which, because of her disability, were not suitable for her."
And then the Claimant added this:
"This would have been evident within communications with Dave Hearse, Personnel Officer, in reference to Claimant's dyslexia. The outcome of the meeting and relevant posts further exacerbated the Claimant's mental anguish, due to preferences previously stated as to where her expertise, skills and career development would lie with the Respondent.
"3. Whether the Respondent has subsequently sought, without consultation to the Claimant, to procure her retirement on the grounds of ill-health."
The Claimant added:
"Due to documentation seen by the Claimant at the Occupational Health visit with Dr Southam, 9 July 2004.
4. Whether, if the Claimant is a disabled person, and either or both of the matters claimed of in 2 and 3 above are established, this amounts to discrimination under (what was prior to October 2004) section 5(1) and/or 2 and 6 of the DDA 1995 (see pages 10, 16-20 and 36, see bundle). "
The Claimant made no alteration to that formulation by the Respondent.
- Based on the disability issues as understood by the Respondent, leaving aside the finally conceded question as to whether the Claimant was disabled, we note that the Respondent's Skeleton Argument, exchanged and lodged in accordance with Mr Parkin's direction following the fifth case management discussion, dealt only with the unsuitable job offers issue in February 2004 (it was denied that any job offers were then made to the Claimant) and the ill-health retirement issue. It was in these circumstances that the Hughes Tribunal read the papers and then embarked upon the substantive hearing.
The Hughes Tribunal Judgment
- The Judgment and reasons under Appeal extend to 48 closely typed pages. However, for present purposes it is necessary only to focus on the following extracts. At paragraph 1 of their reasons, the Tribunal note that:
"There have been several case management discussions (CMDs), during the course of which the issues were clarified. At paragraph 5 the Tribunal refer to the list of issues and state: "We extract from the list of issues and the Claimant's additional information the key points for us to determine relating to matters of law falling within the jurisdiction of the Tribunal."
- They then set out those key points. Material for our purposes under the heading Disability Discrimination are the following:
"5.9 Whether in February 2004 the Claimant was offered three unsuitable posts by the Respondent at a time when she was off work on long-term sick leave, and if so, whether this constitutes less favourable treatment for a reason relating to disability and/or failure to make reasonable adjustments.
5.10 Whether from February 2004 to August 2004 (the time when the claim was launched) the Respondent failed to take reasonable steps to resolve the Claimant's situation in order to enable her to return to work and, in particular, whether the Respondent failed to address the Claimant's concerns regarding her past treatment which (she contended) resulted in her being unable to trust the Respondent to resolve those issues once she returned to the workplace. If so, whether this constituted less favourable treatment for a reason related to the Claimant's disability and/or failure to make reasonable adjustments.
5.11 Whether in or around May or June 2004 and onwards the Respondent sought, without consultation with the Claimant, to procure her retirement on the grounds of ill-health, and if so, whether this constituted less favourable treatment for a reason related to disability and/or a failure to make reasonable adjustments."
- Paragraph 5.9 relates to the unsuitable posts issue, and paragraph 5.11 to the ill-health return issue. Both issues were considered by the Tribunal and the Claimant's case rejected, respectively at paragraphs 41 and 45 of their reasons. The Claimant's case failed in both respects on the facts. However, the Tribunal went on to uphold the claim of disability discrimination on the basis of the issue which they identified at paragraph 5.10 of their reasons. See in particular their findings at paragraph 43 of their reasons. It is that finding which is the focus of the Respondent's Appeal to us.
The Appeal
- Miss Findlay, who appeared before the Hughes Tribunal, as did Mr Gayle, relies upon the now well established principle that the Tribunal's jurisdiction is limited to the complaints made to it. It cannot adjudicate on an act or acts, here of discrimination, which are not before it, see Chapman v Simon [1994] IRLR 124, particularly paragraphs 42 and 45, per Peter Gibson LJ, followed and endorsed in Anya v University of Oxford & Another [2001] IRLR 377, both cases decided in the Court of Appeal. For completeness we have also drawn the parties' attention to the Court of Appeal decision in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. We bear in mind particularly the observation made in that case by Sir Christopher Slade at paragraph 36 of the report. He said this:
"I too would strongly encourage Industrial Tribunals to be as helpful as possible to litigants who, formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence that the litigants can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to another party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such a system should generally be treated as a matter for the judgment of the Tribunal and not a subject of rigid rules of law. In the present case the Trust was, in my judgment, reasonably entitled to expect that the Tribunal would, in its decision, be dealing with only those issues which had been covered by the directions of 29 June 2004 and Mrs Mensah's oral submissions and evidence."
- The facts of that case were that Mrs Mensah raised an allegation of discrimination in her originating act of application, which she did not pursue before the Industrial Tribunal. That Tribunal therefore did not adjudicate on that part of her written complaint. On Appeal to the EAT, Morrison J President presiding, the Appeal Tribunal allowed her Appeal and remitted the case, requiring the Tribunal to adjudicate on that issue. On further Appeal to the Court of Appeal by the Respondent Trust, the Court allowed the Appeal and reinstated the Industrial Tribunal's decision. It was said in the course of the Judgments that it is not for the Industrial Tribunal to adjudicate on matters which are not pursued before it.
- What Miss Findlay tells us from the Bar it that throughout the lengthy hearing she was under the impression that the Respondent faced two substantive issues in the disability discrimination claim, the offer of unsuitable posts in February 2004 and the ill-health retirement issue. This borne out by her initial Skeleton Argument.
- However, it was in closing submissions on day twelve of the hearing that the Chairman interjected when Counsel referred to the two complaints of disability discrimination, saying words to the effect of what about the Claimant's claim that the Respondent did not take reasonable steps to get her back to work. Although the Chairman's comments on this aspect had not been sought at the paper sift stage in this Appeal Tribunal, happily Mr Gayle does not dissent from Miss Findlay's account of what happened below. We therefore proceed on that basis. Miss Findlay submits that the repeated statement of the disability issues in the case management orders, to which we have referred, and the further repetition in the parties' list of issues, make it clear that in purporting to decide the DDA claim in the Claimant's favour on a different issue, the Tribunal exceeded its jurisdiction, as explained in Chapman v Simon [1994] IRLR 124. Indeed she goes further, contending that even if a live issue existed at the Hughes Tribunal hearing, based on what was pleaded at paragraph 13 of the Claimant's particulars dated 10 January 2005, the issue as formulated by the Tribunal at paragraph 5.10 of their reasons, and adjudicated on at paragraph 43, was quite different. She points out that the Tribunal at paragraph 43 made five separate findings of failure to make reasonable adjustments on the part of the Respondent, none of which had been articulated or advanced by, or on behalf of, the Claimant.
- In response, Mr Gayle has helpfully taken us to passages in the form ET1 and also paragraph 5 of the Skeleton Argument which he provided on the Claimant's behalf at the commencement of the substantive hearing in support of his submission that the issue on which the Claimant succeeded was sufficiently identified. At paragraph 5 of that Skeleton Argument he said this:
"In 2004 when the Claimant was anxious to return to work while suffering from reactive depression, all reasonable requests to resolve the outstanding issues were refused, thus compounding the illness resulting in the Claimant feeling isolated and left with no sense of direction. The Claimant's numerous phone calls and contact to the Respondent was met with avoidance, empty promises and a "brick wall", further having a detrimental impact on her mental health."
- Miss Laws herself also addressed us as to the Claimant side's input into the list of issues. The additional comments she tells us were formulated by herself and her partner. Although it was Miss Laws told us frankly that she felt unwell at that stage; she did not have a clue and did not understand the process. We received no other explanation as to why the third disability issue, reasons paragraph 5.10, was not added to the list initially prepared on behalf of the Respondent.
- Having considered the rival submissions, we unanimously prefer those of Miss Findlay. We are reminded of the valuable procedural guidance given by Mummery LJ in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96/101. He said this, at paragraphs 53 to 54:
"53. I would add a few words on the case management aspects of a case like this, where the complaints involve numerous instances of acts by many different people over a long period. As appears from the directions already given, the tribunal chairman is well aware of the importance of direc tions hearings to ensure that the case is ready for hearing and to explore ways of saving time and costs.
54. Before the applications proceed to a substantive hearing, the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties' representatives should con sult with one another about their proposals before request ing another directions hearing before the chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement."
- Returning to the procedural history, it is absolutely clear to us, reading the relevant case management orders and listed issues, that the substantive hearing proceeded on the basis of two disability issues only. In closing submissions, the Tribunal raised a third. The Respondent was given little opportunity to deal with that third issue in argument and no opportunity to call evidence on the matter. Miss Findlay tells us that had she appreciated that the third issue was live she would, for example, have called Dr Southam, who is referred to in the Tribunal's reasons. Another unusual feature of this case is that, so Miss Findlay tells us without dissent from Mr Gayle, the Chairman spent one and a half days questioning the Claimant in the witness box, presumably in order to draw out her case.
- We return to the observation of Sir Christopher Slade in Mensah. It is of course absolutely right that Tribunals, in particular the Chairman, should be as helpful to litigants in person or those represented by unqualified friends to formulate and present their case. However, such assistance must be balanced against the need to ensure fairness to the opposing party as well as to the Claimant.
- The Purpose of CMDs; in this case there were no less than five separate CMDs, is to identify the issues culminating in an agreed list of issues, as Mummery LJ counselled in Hendricks. In the particular circumstances of the present case we have concluded that in formulating and adjudicating on an issue that was not properly raised by the parties, this Tribunal overstepped the boundary of providing proper assistance to the Claimant so that an injustice was suffered by the Respondent. Adopting the approach taken by the Court of Appeal in Chapman v Simon, we shall accordingly allow the Respondent's Appeal and dismiss the Claimant's complaint of disability discrimination, all other claims having already been dismissed.
