Appeal No. UKEAT/0455/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 January 2010

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MR D BLEIMAN
MISS S M WILSON CBE

MISS A TUCKER	APPELLANT

PARTNERSHIP IN CARE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR N WOODHOUSE
(of Counsel)
Instructed by:
Messrs Edward Harte & Co Solicitors
6 Pavilion Parade
Brighton
East Sussex
BN2 1RA	
For the Respondent	MR T STARR
(Solicitor)
Messrs Starr & Partners
21 Garlick Hill
London  
EC4V 2AU	

SUMMARY
PRACTICE AND PROCEDURE
DISABILITY DISCRIMINATION
Reasonable adjustments

An Originating Application made a claim for compensation for detriment suffered by reason of the employer’s failure to make reasonable adjustments to accommodate the employee’s disability. At the pre-hearing review, and thereafter, the issue of disability discrimination identified by the parties for the Tribunal to resolve was whether the employer had dismissed the Claimant for a reason related to her disability.  The Tribunal approached its decision on that basis, and was not invited to do otherwise until (once it had given its decision) the Claimant sought a review on the basis that there was a claim for in respect of failure to make reasonable adjustments which was free-standing and not tied to that for dismissal, which (on the factual findings as made) ought to have been answered in favour of the Claimant.  It was thus argued the Tribunal had failed to determine a claim which was before it. Held, on appeal from the Tribunal’s decision to hold a review, but refuse to alter its decision, that the Tribunal was entitled to act as it did, since its task was to determine the issues the parties put before it for decision, and that it had done.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	This appeal, from a decision of an Employment Tribunal sitting at Brighton which was given on 29 May 2008, gives all of us cause for some concern.  The error of law which the Claimant suggests the Tribunal fell foul of was that the Tribunal failed to deal with an outstanding claim which had been made by the Claimant in her Originating Application.  The Respondent’s reply is that this was not argued as a free-standing claim before the Employment Tribunal.  The issue, therefore, relies heavily upon what did or did not happen procedurally before the Tribunal rather than the quality of the factual reasoning of the Tribunal itself.

The Facts
2.	The brief facts are these: in its decision the Tribunal upheld a claim for unfair dismissal contrary to section 98 of the Employment Rights Act 1996.  It dismissed claims under the Working Time Regulations 1998 and under the Disability Discrimination Act 1995 but allowed a claim in respect of breach of contract.  It determined that there had been some contributory fault in respect of the unfair dismissal, the details of which do not further trouble us. The focus of the appeal is upon the rejection of the claim for discrimination on the grounds of disability contrary to the 1995 Act.

3.	  When the claim began the Claimant issued two ET1’s, the second of which dealt with her claim under the Working Time Regulations.  

4.	The first Originating Application however alleged that the Claimant had been unfairly dismissed and, so far as disability was concerned, claimed that she suffered from idiopathic intracranial hypertension.  That had an effect upon her ability to carry out her day-to-day activities and it led her, in particular, to need to work shorter shifts with sufficient breaks.  She worked as a health care support worker and said that she worked long shifts which could extend for 13 hours, very often without any substantial break at least until late in the shift.

5.	It emerged later in the case, though not in the Originating Application, that an additional trespass upon her ability to undertake work as a care assistant was that the long shifts were frequently so organised that four long shifts might follow one day after the other.

6.	On page 8 of her Originating Application at paragraph 16 she said:
“The claimant is claiming unfair dismissal, disability discrimination, failure to make reasonable adjustments and victimisation.”  

The reasonable adjustments were not specified although reference had been made to the need for shorter shifts and breaks in the pattern of work.  The claim was further amplified in the same Originating Application in the same terms.

7.	In the Respondent’s response the Respondent alleged that the Claimant had been dismissed from employment not because she was disabled, nor because she had raised any complaint that she required reasonable adjustments which had not been made, nor because the Respondent was itself embarrassed by any failure on their part to achieve reasonable adjustments.  The Respondent’s case was pure and simple: that the Claimant had been dismissed for having sworn at a patient whose care she was obliged by her employment to provide.

8.	At paragraph 5(2) of the response in the Respondent’s notice the Respondent said that it was without the benefit of any particulars of certain aspects of the disability related claim, and at page 6 of this document, in paragraph 17, said that its response assumed that the Claimant’s disability related claims were (1) that the Respondent discriminated against the Claimant on grounds of disability by dismissing her, contrary to section 3A(1) of the Disability Discrimination Act and/or sub-section 5, (2) that the Respondent discriminated against the Claimant by way of victimisation in that it dismissed her (section 55) and thirdly that the Respondent discriminated against the Claimant by failing to make reasonable adjustments (section 3A(2)/section 4A).

9.	In a number of paragraphs, from 22 to 39, the Respondent set out a case in respect of reasonable adjustments.  It is thus claimed that by the time both the application and the Respondent’s notice had been entered there was, on the face of it, an issue as to whether or not there had been reasonable adjustments made by the Respondent for the Appellant/Claimant and whether the failure to make those adjustments, as alleged, was discriminatory against the Claimant.

10.	The complainant issued a questionnaire under section 56 of the Act. Paragraph 14 of that questionnaire referred to issues which had been raised internally by way of grievance with her employer.  Those issues included unfair dismissal, disability discrimination, failure to make reasonable adjustments and victimisation.  

11.	Thus far it seems plain that failure to make reasonable adjustments was being advanced, on the face of it, as a separate free-standing claim.

12.	The questionnaire required details to be given of any adjustments which were considered to help the Claimant continue working despite her disability, who had considered those adjustments, when they were considered and why they were not implemented.  An answer was given to that, as one would expect, by the employer: this recorded that the Respondent had adjusted the Claimant’s working pattern so that she did not work more than three consecutive shifts or work nights and gave details of the persons within the employment of the Respondent to whom those adjustments were advised.

13.	All those documents were filed before the pre-hearing review.  When the pre-hearing review was heard before the Employment Judge, who later chaired the Tribunal on 18 January 2008, both the Claimant and the Respondent were represented.  The Claimant, we are told, was present.  Her representative was from the local Citizens Advice Bureau.  Mr Starr, who has appeared before us for the Respondent, appeared then as he did at the subsequent Tribunal for the Respondent.

14.	Before the pre-hearing review was heard the conventional document giving notice of hearing was issued to the parties.  It said that the agenda for the pre-hearing review would be to deal with three matters. The second of those was to identify the claims, that is the case the Claimant was bringing before the Tribunal, the remedy claimed and the value of the claim.  Third was to clarify the issues, that is the questions which the Tribunal would have to decide in order to determine the claims.  This warning was given; “if any issue is not clarified at this pre-hearing review the parties cannot expect the Tribunal at the full hearing to address that issue.  Any request for additional information should be raised at the pre-hearing review.  It would greatly assist the Tribunal if the parties had tried to agree the issues prior to the pre-hearing review”.

15.	There are consequential directions, but it is plain that the principal reason for the pre-hearing review that must have been understood by the parties, in this as it will in most cases, was that the Tribunal was attempting to determine precisely what were the issues in dispute between the parties arising out of the documents which we have mentioned.  

16.	The order made on the pre-hearing review reads as follows, so far as material, in paragraph 1:
“1. Having: 
1.1	Heard ... [sets out the representatives]... 
1.2	identified that the issues arising in this case are as set out in Schedule A to this order.” 

It then goes on to say various orders and directions have been made (our underlining).  Thus the object of the hearing was, on the face of it, honoured in the event.

17.	Schedule A set out the issues. In that Schedule the following matters of relevance are mentioned:
“A1 The Claimant makes a complaint of unlawful disability discrimination.  
A2 A complaint of unlawful disability discrimination arises both under Sections 3A and 4A of the Disability Discrimination Act 1995.  The Claimant alleges: 
A2.1 that she was dismissed in consequence of her disability and that having requested reasonable adjustments in accordance with Section 4A of the Act, which adjustments the Respondent failed to make, she was dismissed in consequence of her disability and of her request for reasonable adjustments.”  

There was a second issue as to whether the Claimant was disabled, and the Schedule set out what she said that her disability was:  The issues continued, to deal with the claim for wrongful dismissal relating to non-payment of notice pay and the alleged breach of the Working Time Regulations, in that the Claimant was often required to work 12 or 13 hours without a break.

18.	What was significantly absent from the list of issues in Schedule A was any specific reference to a claim in respect of a failure to make reasonable adjustments as a free-standing claim.  The first issue identified, the terms of which we have recited in full, related to dismissal:
“… dismissed in consequence of her disability and that having requested [and we note the tense] ... she was dismissed in consequence of her disability and of her request for reasonable adjustments.”  

19.	The issue thus identified by the Employment Judge on 18 January was that the arguments about disability were related and related only to the question of dismissal.  Nothing was said as to whether there was any other detriment which the Claimant said she had suffered in consequence of the Defendant’s then alleged failure to make reasonable adjustments in her working regime.

20.	We understand that this order would have been circulated to the parties.  It would have been open to the Claimant, having been at the hearing, to have raised with her representative the absence of reference to her making a claim in respect of any damage she had suffered or any claim that she made, other than that relating to dismissal, relating to the Respondent’s alleged failure to make reasonable adjustments.

21.	It would have been open to her to have raised either directly, or through the Citizens Advice Bureau, as her representative, the absence of any such issue in the list of issues at any time between the date of the pre-hearing review and the date of the hearing.  There is nothing to suggest that she took any exception to the issues as set out in the order made following the pre-hearing review.

22.	Mr Woodhouse submits that the issue, as first drafted under Schedule A, is not clearly phrased at least so that someone in the position of the Claimant would understand that it was only dismissal which was being alleged as a consequence of the disability discrimination which she had suffered.  We think that there may be some force in what Mr Woodhouse says but on the other hand it is clear to us that there is an obvious absence of any other reference to a claim based upon the failure to make reasonable adjustments, and that even if she did misunderstand or not fully appreciate the effect of the wording at A2.1, she could have been in no doubt that there was missing from the list, if she had wished there to be within the list, a claim in respect of other detriment suffered by her in consequence of the Defendant’s alleged breach of duty.

23.	Matters were, to some extent, further compounded by an exchange of correspondence which took place in April before the hearing began.  The solicitor acting for the Respondent wrote a letter in the spring of 2008 to the Citizens Advice Bureau which, on one reading, was capable of suggesting that in Mr Starr’s view the issue before the Tribunal was simply one of unfair dismissal.  There was a response to that on 11 April 2008 in which the Citizens Advice Bureau, on behalf of the Claimant, said:
“The issue for the tribunal is not only whether your client was entitled to dismiss the claimant in the circumstances of the particular case.  The issue for the tribunal is also whether the dismissal of the claimant was less favourable treatment on the grounds of her disability, or for a reason relating to her disability and which was not justified.”  

24.	This reply may not take matters very much further because it does not make any reference to the claims which were undoubtedly being made in respect of the Working Time Regulations or in respect of contract – but, again, it does not in any sense suggest that there was at this stage any active pursuit of the claim that had appeared on the papers in the ET1 as a free-standing claim in respect of a failure to make reasonable adjustments.

25.	When the Claimant came to finalise her witness statement before the hearing she did, however, make a significant point about the effects of a failure to adjust her working pattern.  Thus, in her witness statement at paragraph 36, she complained that she had to take a day of annual leave in order to break up her rota because the effect of the rota had left her exhausted.  Paragraph 38 described that she felt forced to take a day off to break up shifts because she could not otherwise cope with the fatigue;  Paragraph 39 that she was forced to use up a day’s annual leave, again to break up another group of shifts and was made to feel very bad about doing that. She records incidents with a line manager whose response to her request for consideration had been dismissive and derisive upon more than one occasion.

26.	Paragraphs 52, 53 and 54 again refer to the effects upon her of a failure to adjust her working pattern.  There was thus material which was advanced by her by reading her statement to the Tribunal at the outset of proceedings which recorded the adverse effects of what she said was a breach of the Respondent’s duty upon her.

27.	Responsively, Liz Ibrahim, for the Respondent, in her witness statement, referred to making recommendations that adjustments be made in the Claimant’s working practices, that there should be no night shifts, no more that three consecutive shifts and there should be regular breaks.  There was, thus, evidence from both the Claimant and the Respondent, not simply about reasonable adjustments and the failure to make them but about the effect that the failure had had on the Claimant.

28.	When the Tribunal gave its reasons it repeated, at paragraph 2, essentially what had been identified as the issue at the pre-hearing review.  The discrimination was said to be:
“... in that she was dismissed in consequence of her disability and having requested reasonable adjustments in accordance with Section 4A of the Act, which adjustments the Respondent failed to make, such dismissal was therefore in consequence of her disability and of her request for reasonable adjustments.”

It is plain that the principal focus of the Tribunal’s attention was on the question of the dismissal.  The Tribunal had to determine whether it was for reasons relating to her disability, as the Claimant alleged, or whether it was because she had sworn at a patient as the Respondent alleged and had nothing to do with any disability at all.

29.	In the event, the Tribunal came to the conclusion that the latter was the case, although it felt that the sanction of dismissal did not and could not fall within the range of reasonable responses open to the employer and for that reason found the dismissal to be unfair.  Having therefore determined, as the Tribunal did, that the issue, as it opposed it, had to be answered such that the dismissal was not related to any disability, it dismissed the claim under the Disability Discrimination Act.

30.	At paragraph 26, however, the Tribunal said this:
“In addressing the issue of whether the Claimant’s dismissal was the consequence of a hidden agenda, namely the swearing being an excuse to dismiss an employee whose absence record was considered unacceptable and whose disability and the need for adjustments might cause the Respondent embarrassment, the Tribunal accept that the Respondent did not comply with the reasonable adjustments proposed by the Claimant’s General Practitioner in spite of both Human Resources and the appropriate level of management being aware of the need.”

In short, the Tribunal were there holding that there had been a failure by the Defendant in fulfilling its duty under section 4A of the 1995 Act.  Because of the finding under paragraph 26, in what was a reserved judgment, the Claimant, by her representative, sought a review of the Tribunal’s decision.

31.	On 29 August 2008 the Tribunal allowed the application for a review in this respect.  It did so upon the basis that the Claimant’s application to the Tribunal had clearly stated that there was a failure to make reasonable adjustments in accordance with section 4A of the Disability Discrimination Act.  When it conducted the review, however, on 25 March (the reasons for which were given on 30 April 2009) the Tribunal, though upholding its decision that the Respondents were in breach of their duty under section 4A of the Act and rejecting a submission that the Tribunal had not had any reasonable opportunity to deal with any separate claim for reasonable adjustments, in evidential terms, said this at paragraph 3:
“The problem that the Claimant faces in this case is that allowing what the Respondent says about the ET3, namely that they did their best to answer a claim which they thought was unclear, we have the record of the Pre Hearing Review in which the Claims under Sections 3A and 4A of the Disability Discrimination Act are clearly stated.  The detriment in both cases was expressed to be the dismissal and it has to be said that on revisiting the Reserved Judgment and the notes which are available to the Tribunal, that was the way the case was pursued by the Claimant when it came for hearing.  If the detriment was a dismissal and the dismissal was found not to be connected with the complaint under Section 3A or 4A, then the Claimant would have suffered no detriment in accordance with the evidence which was given and therefore the Tribunal today finds that the decision that it made on 29 May 2008 was correct and for the purposes of Regulation 36 the Tribunal confirms its judgment.”  

We have heard nothing to suggest that the case was pursued by or on behalf of the Claimant at the hearing before the Tribunal in any way other than that which is stated in paragraph 3 of the Decision on the review.  There is no material available to suggest that the Claimant had attempted to reopen the question of the issues as stated in the pre-hearing review.  There was a schedule of loss which did not identify loss or damage caused by or related to a detriment short of dismissal which had been suffered in respect to the failure to make reasonable adjustments.

32.	We, therefore, have to approach this appeal upon the basis that the way in which the case was advanced on behalf of the Claimant before the Tribunal. That was to tie the allegations that there had been discrimination on the grounds of disability to the claim which was made in respect of dismissal, and to make no attempt before the Tribunal at the hearing to invite it to make any separate finding or consider to any wider extent that what might otherwise be the consequences for the Claimant of those failures.

33.	The case, as put by Mr Woodhouse, is that the claim which had been advanced by the Claimant was clear. It was the wording of the issue at the pre-hearing review which was unclear.  The claim was advanced both under sections 3A and 4A.  He notes that it was unsurprising that the case was argued principally on the basis of dismissal because that was a significant claim but it could not be said, in his submission, that the Tribunal had not been alerted to the consequences of a failure to make reasonable adjustment because that was in the Claimant’s own evidence and indeed responded to by the Respondents.  The Tribunal simply had not dealt with it.  Its response, on review, was insufficient.

34.	Mr Starr, from his perspective on behalf of the Respondent, submits that internally to the employer, before the claim was framed within an Originating Application, it was one in respect of dismissal, and that the Originating Application ties in complaints about the length of shift and the absence of breaks, not to a claim under the Disability Discrimination Act but to a claim under the Working Time Regulations.

35.	He, however, principally relies upon the way in which the matter was framed at the pre-hearing review, and submits to us that if the Employment Tribunal had simply missed the point that the Claimant really wanted to make, then either at the pre-hearing review, afterwards or at the Tribunal, it was incumbent upon the Claimant to raise the point with the Tribunal.

36.	He submits that the Tribunal was not obliged to investigate the significance of the comments which the Claimant made in her witness statement about the effects of the Defendant’s failures upon her.  He went so far as to suggest that there was no error of law which could arguably be identified here but retreated somewhat when the bench observed that it must be an error of law to fail to deal with a point which was properly put before a Tribunal.  He maintained that in the event it never had been put up for decision by this particular Tribunal.

Conclusion
37.	The claim in the Disability Discrimination Act 1995 is made under section 4(2)(d):
“It is unlawful for an employer to discriminate against a disabled person ….by dismissing him, or subjecting him to any other detriment.”

Discrimination is defined by section 3A.  The duty in section 4A does not require a detriment to be proved, nor specify the duty to make reasonable adjustments, but it is common ground that the tort arises under section 4 in respect of which a failure under 4A is relevant.  However, in his submissions, Mr Starr reminds us that section 18B(6) provides that a duty to make reasonable adjustments is not actionable as such but applies only for the purpose of determining whether a person has indeed discriminated against a disabled person.

38.	Accordingly, the detriment needs to be identified.  On the material placed before us on which we can rely, the Tribunal has said that the detriment identified to it was that of dismissal.  Nothing else was alleged in the paperwork.  Nothing else was identified at the pre-hearing review.  Nothing else was clearly identified by the Claimant thereafter.  Indeed we accept what Mr Starr submits that if it had been an extant claim then the Tribunal, he and the Claimant’s representative at the Tribunal hearing, had all missed the fact that another claim was actually being made which was simply not being addressed.

39.	As a matter of principle an Employment Tribunal hearing is adversarial.  The Tribunal has to rule upon cases as they are presented to it.  The formulation of that case does not depend simply upon the Originating Application and the response to it, but where there has been a pre-hearing review for the purpose of identifying the issues, it focuses upon and only upon the issues as so identified.  Those are the issues for the Tribunal to determine.  It has not been said before us, nor could it be, that the pre-hearing review was in error in the formulation it adopted because the material is simply not, as it seems to us, available to Mr Woodhouse to make that complaint.

40.	The Tribunal may act where there is a litigant in person or where that litigant is represented, not by a professional lawyer but by some other representative such as a Trade Union representative or member of the CAB or whoever it may be, to assist the Claimant.  A Tribunal may take steps to identify whether there is some other claim which ought properly to be advanced providing it does so within the bounds of reason and justice which would normally apply in such circumstances, affording opportunities to a Respondent to deal with the case thus identified. But as a matter of law it does not have to do so.  The essential role of the Tribunal is effectively to umpire, and then determine, the disputes put before it by the parties.

41.	We confess to some unease here as to whether or not the Claimant may, as a matter of fact, have fully appreciated that her claim was being advanced simply upon the basis that it was.  We think that was probably the case but, in any event, that unease cannot affect our decision which is that the Tribunal must be shown to be in error of law and it is not an error of law to deal with an issue which was put before them by the parties without the dissent of the parties and which focused and focused only on dismissal as a detriment of any of the disability discrimination from which the Claimant suffered, and not to deal with an issue which was not put before them (even though at one stage of the claim it seemed it might be).

42.	The consequence is this, this Tribunal can allow appeals only if there is an error of law by the Tribunal below.  Having concluded that there is no such error in the circumstances of this case, disturbing though they are, we have no alternative but to reject the appeal.

43.	We would not, however, wish to do so without paying tribute to Mr Woodhouse who has advanced the appeal with persuasive moderation, albeit unsuccessful in the event, and to Mr Starr for their submissions.