HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Addaction, a registered charity, against part of a
judgment of the Employment Tribunal (Employment Judge Blackwell sitting alone)
dated 22 November 2010. Miss Sukhdeep Cheema had brought proceedings against
Addaction alleging unfair dismissal and disability discrimination. She
withdrew the claim of disability discrimination at the beginning of a
pre-hearing review listed to determine an application to strike out her claims
on the grounds that they had no reasonable prospects of success. Addaction
applied for costs. The Employment Judge refused that application. This is
Addaction’s appeal against that refusal.
The background facts
2.
Miss Cheema was employed by Addaction as a project worker based at their
Ilkeston branch with effect from 2 July 2007. Two features of her period of
employment stand out. Firstly, she was often absent from work: for example,
for about 6 weeks in February and March 2008, for about 4 weeks in August and
September 2008, and then for the whole period from 18 February 2009 until her dismissal on 18 November 2009. This last absence was on the grounds of
occupational stress. Secondly, she brought grievances in both 2008 and 2009
alleging bullying, victimisation and harassment by managers and others within
Addaction.
3.
A report was commissioned by Addaction from a consultant occupational
physician, Dr Tellam. His report, dated 9 October 2009, recorded that her absence had been certified by her GP since February. No treatment had been
necessary except for night-time sedation. He said:
“I am not aware of any underlying health problems likely to
impact on her fitness for work. There would appear to be an irretrievable
breakdown in the relationships at work. If a satisfactory resolution could be
achieved then there is no medical reason why a successful return to work should
not ensue, enabling her to provide regular and effective service in the
future. If matters cannot be resolved then, to prevent further psychological
distress, some form of separation is most likely to be appropriate in this
case. Redeployment may be a consideration.
As matters relate purely to this lady’s perception of her
current employment, I would not be anticipating a long-term or substantial
impairment in her ability to undertake the tasks of daily living and as such it
is my opinion that the Disability Discrimination Act 1995/2005 is unlikely to
apply. Matters here very much relate to this lady’s perception of work and
although the effects are medical, the solution lies very much in the hands of
management. I would strongly recommend matters being brought to a conclusion
as swiftly as possible in the hope of preventing further psychological
distress.”
4.
Following a disciplinary hearing which she did not attend Miss Cheema
was dismissed on 18 November 2009. The letter of dismissal cited the
following: a serious lack of co-operation during periods of sickness absence,
in particular failing to consent to the preparation of a medical report and to
attend appointments; absence when there was no valid medical reason for
absence; an irretrievable breakdown in relations caused by her hostility and
resentment towards the charity. Miss Cheema appealed. Her appeal was
dismissed.
Proceedings
5.
Miss Cheema received advice and assistance from the Derby Community
Legal Advice Centre from October 2009 onwards. Ms Sanghera a solicitor of this
organisation was recorded as her representative on the claim form.
6.
The claim form alleged unfair dismissal and disability discrimination.
The allegations of disability discrimination were based on stress, said to be
“defined as a disability under the legislation”. The claim form acknowledged
the existence of Dr Tellam’s report without commenting directly on its
assessment of the question whether Miss Cheema was a disabled person. The
claim form continued:
“33. The claimant contends that in relation to the above, the
claimant suffers from a disability pursuant to the Disability Discrimination
Act 1995. Pursuant to s18(2) of the Disability Discrimination Act 2005 (‘DDA
2005’) mental illness no longer needs to be clinically well-recognised to qualify
as a disability. Therefore, the claimant contends that her stress is a
disability for the purposes of the DDA 2005. The claimant suffered from a
mental impairment that was caused by the respondents whose actions had
substantially adverse affects on the claimant. The claimant’s stress is long
term and this has affected her ability to do normal day to day activities with
difficulties in concentrating and maintaining composure. The claimant suffers
from emotion stability and finds it difficult to talk to anyone about her
former employment. She is still in a fragile and vulnerable state and when
asked to discuss her former employment she cannot speak about it without
breaking down into tears. This has further exacerbated the claimant’s problems
with finding new employment as she is unable to participate to a competent
standard during interviews. Because of this the claimant’s support worker has
judged it necessary to postpone interviews with the claimant until some time
that the claimant can regain composure. The claimant’s stress has affected her
professional life in that her career has come to a standstill. The claimant
lacks self esteem and no longer has the confidence to pursue any career
ambitions. Furthermore the claimant’s personality has changed as a result of
the stress, and she is no longer enthusiastic and outgoing like she was before
she suffered from work related stress. The claimant’s appearance has also
changed because of the long period of stress she has endured, and she is
currently taking medication.
34. The claimant contends that if another employee had been
absent from work with a doctor’s note, that the respondents would not have
treated that person in the same way that they treated the claimant. The
claimant is competent, capable and available to perform the essential functions
of the post. If the respondents had resolved her grievances and provided her
with a safe working environment, and made the necessary adjustments pursuant to
sections 6(2)(a) and sections 6(c), (e) and (g) then the claimant would have
returned to work. The appraisals from the respondents in the early stages of
her career prove the claimant is competent and dedicated to her job.”
7.
Addaction’s response denied that Miss Cheema was a disabled person. It
asserted that her claim in this respect was misconceived. Addaction’s
solicitors continued to pursue this argument, eventually issuing an application
to strike out the claim on 27 July. This striking out application also
encompassed the unfair dismissal claim.
The Employment Judge’s reasons
8.
The Employment Judge, having heard submissions from Mr Dhar for
Addaction and Ms Letts for Miss Cheema, gave the following reasons for
rejecting the application for costs.
“5.2 I understand Mr Dhar’s application to be on the basis both
that the Disability Discrimination Act claims were misconceived and/or in the
alternative were unreasonably brought. The background is, of course, that the
Claimant brought before the Tribunal on or around 17 February 2010 several DDA
claims. I have to say that the ET1 is yet another example of the scattergun
approach that Claimant’s adopt and it is an approach I deprecate. Nonetheless,
to return to Mr Dhar’s submissions, he points me firstly to the Consultant
Occupational Physician’s, that is Dr Tellam, and his report of 9 October 2009. In that report the good doctor says ‘I would not be anticipating a long
term or substantial impairment in her ability to undertake the tasks of daily
living and as such it is my opinion that the Disability Discrimination Act
1995/2005 is unlikely to apply’.
5.3 Mr Dhar then draws me to the individual heads of claim. The
first one is a matter of the harassment/victimisation which, of course, forms
the backbone of the Claimant’s case of unfair dismissal. I think Mr Dhar is
right in saying that as a matter of law the victimisation element of the claim
is misconceived. I cannot see from the papers any event which would bring the
Claimant within Section 55 of the 1995 Act, certainly in relation to the first
grievance.
5.4 There are then the issues of harassment which are put
together in the grievance procedure as being effectively one and the same
thing, although the perpetrators change in relation to the second grievance.
Here Mr Dhar rightly points to both the limitation period and to the
requirement to follow what was then in force the statutory grievance
procedure. In relation to the time point however a tribunal could well have
found that the process was a continuing act thus bringing it within time. As to
the grievance procedure the requirements are not onerous upon a Claimant and
the Claimant is not required to apply a label but simply to identify facts
about which the Claimant complains. It seems to be that both the August 2008
and March 2009 grievances did enough to fall within the grievance procedure.
5.5 However, my main reason for refusing this application is
that, it seems to me, the investigations that the Respondents were required to
carry out to deal with the unfair dismissal claim are much the same and largely
indistinguishable from the matters that relate to disability discrimination. I
cannot therefore see that the Respondents have in fact, and contrary to Mr
Dhar’s submissions, been put to extra expense.
5.6 I also ought to deal with another main plank of Mr Dhar’s
submission, namely that the withdrawal of the whole raft of DDA claims was too
late. I come back in fact to Dr Tellam’s report because in effect Mr Dhar is
saying that they never ought to have been brought at all on the basis of that
report. However Dr Tellam’s report is not conclusive, it is an opinion and as
we know recent cases have identified that tribunals should look at the actual
evidence of impairment to carry out day-to-day activities. I cannot therefore
conclude that Dr Tellam’s report is such as to require the Claimant never to
bring a claim in the first place. After that report other than the
Respondents’ solicitors pointing out the weakness of the disability claims no
event has occurred.
5.7 In view of the foregoing on balance therefore I am not
persuaded that an order for costs should be made.”
Legislation
9.
The application for costs was made pursuant to rule 40(2) and (3) of the
Employment Tribunal Rules 2004, which provide as follows:
“40(2) A tribunal or Employment Judge shall consider making a
costs order against a paying party where, in the opinion of the tribunal or
Employment Judge (as the case may be), any of the circumstances in paragraph
(3) apply. Having so considered, the tribunal or Employment Judge may make a
costs order against the paying party if it or he considers it appropriate to do
so.
(3) The circumstances referred to in paragraph (2) are where the
paying party has in bringing the proceedings, or he or his representative has
in conducting the proceedings, acted vexatiously, abusively, disruptively or
otherwise unreasonably, or the bringing or conducting of the proceedings by the
paying party has been misconceived.”
The appeal
10.
I must keep carefully in mind that there is an appeal to the Employment Appeal
Tribunal only on a question of law. The question whether to make an order for
costs under rule 40(2) involves elements of fact-finding, evaluation and
discretion. When a Tribunal decides whether a claim was misconceived or
unreasonably brought, there will be a significant element of evaluation. When
a Tribunal decides whether a claim was unreasonably conducted, there may be a
significant element of fact finding and there will be a significant element of
evaluation. When the Tribunal decides whether to award costs, there is also a
strong discretionary element. The Appeal Tribunal will not interfere with an
exercise of evaluation or discretion unless it is demonstrably made on wrong
legal principles, or leaves out of account that which the law requires to be
considered; or treats as relevant that which is legally irrelevant; or reaches
a conclusion outside the range within which reasonable people may disagree.
This is a stiff test, recognising that Parliament has limited the Appeal
Tribunal’s role and vested in the Tribunal the primary decision-making role.
11.
Against this background I will consider each of the submissions put
forward by Mr Dhar on behalf of Addaction.
Stating a grievance
12.
Mr Dhar submitted to the Tribunal that Ms Cheema had not stated a valid
grievance in respect of her disability claims; and her claim was barred by
section 32(2) of the Employment Act 2002. The Employment Judge
considered that the August 2008 and March 2009 grievances did enough to fall
within the ambit of section 32.
13.
Mr Dhar’s first submission was to have been that the Employment Judge
was wrong; and should have followed the guidance of the Appeal Tribunal in Sadare
v London Borough of Lambeth. I am inclined, having looked at the
grievances, to agree with him; and this would have been a knock-down point,
showing that the Employment Judge approached at least part of his reasoning on
the wrong basis. However, researches this morning show that section 32(2) had
been repealed by the time the claim was presented to the Tribunal and that
transitional provisions in the Employment Act 2008 (Commencement No 1)
Regulations (see Sch, Part 1, paragraph 3) do not operate to preserve the
effect of section 32(2) in this case. This point was missed below by the
Employment Judge, Mr Dhar and Miss Lett; missed by Mr Dhar in drafting the
Notice of Appeal, and missed by me until shortly before the start of this
hearing. I gave Mr Dhar an opportunity to consider it. Now that it has been
identified, Mr Dhar correctly concedes that section 32(2) had no application.
The Employment Judge was correct so to hold, albeit for the wrong reasons.
Alleging discrimination
14.
Mr Dhar then argues that it was misconceived and unreasonable to allege
disability discrimination in the light of the report of Dr Tellam. The
Employment Judge disagreed, saying that Dr Tellam’s report was not conclusive.
This is correct as a matter of law, and the Employment Judge’s viewpoint is not
perverse. By the time proceedings were issued Ms Cheema had been off work for
about a year with stress related symptoms for which her doctor had certified
absence. The claim form set out a tenable case for saying that she was a
disabled person.
Time limits
15.
Mr Dhar then argues that any allegations of discrimination ended more than
3 months before the date when the claim was brought; therefore once again it
was misconceived and unreasonable to allege disability discrimination. The
Employment Judge said that a tribunal could well have found that the process
was a continuing act, meaning a continuing act up to and including dismissal,
bringing the allegations within time. Mr Dhar in his skeleton argument attacks
this conclusion, but there is no error of law in it: the question is one of
evaluation. The Employment Judge was entitled to the evaluation he made.
Overview
16.
Mr Dhar submits in his skeleton argument that upon an overview of the
whole case the Employment Judge ought to have held that it was misconceived to
raise an issue under the Disability Discrimination Act. Again, I think the
Employment Judge was entitled to reach the conclusion he did: he did not err in
law, and his conclusion must be respected.
Overlap
17.
The Employment Judge’s expressed main reason for refusing the
application was, in effect, that there was a substantial overlap between the
unfair dismissal claim and the disability discrimination claim. Mr Dhar
submits that this was a perverse view. He has taken me through the many
different issues which may arise in respect of the two claims.
18.
I must say that I was at first surprised by the Employment Judge’s
conclusion, for the two claims are conceptually very different, the unfair
dismissal claim requiring a review of the employer’s reason for dismissal, and
the disability discrimination claim requiring findings over a substantial
period of employment as well (possibly) as medical evidence.
19.
In fact, however, as I have read the papers I have reached the view that
the Employment Judge was entitled to the conclusion he reached. I find the
letter of dismissal dated 18 November 2009 a telling document in this respect.
The reason for dismissal encompassed an allegation of “serious lack of
co-operation from you during your current and previous periods of sickness”.
It involved rejecting her case, put in writing, that the subject matter of her
previous grievances was relevant and important to the question whether she
ought to be dismissed. It involved considering Dr Tellam’s report as against
the sickness certificates put in by the GP. It involved a wide-ranging allegation
that she was responsible for an irretrievable breakdown in relations. There
was, as at the time when the Employment Judge considered the case, no expert
instructed specially to consider the disability issue (so there were no
discrete expert expenses to consider).
20.
In practice, therefore, there was substantial overlap; and the
Employment Judge was entitled to the conclusion he reached; that is to say, the
conclusion was not perverse.
Late withdrawal
21.
Mr Dhar submits that the Employment Judge’s approach to the question of
late withdrawal was flawed. He submits that the Employment Judge confused the
question whether it was reasonable to bring the claim with the question whether
it was unreasonable to withdraw it so late.
22.
I am sure the Employment Judge did not confuse these questions. The
main ground which he gave for his decision – which I have called for shorthand
the overlap reason – applied with great force to the complaint of late
withdrawal, since the hearing would in any event have proceeded on the question
of unfair dismissal. It is true that the Employment Judge addresses more than
one question in paragraph 5.6, but I read this as a mopping up paragraph after
he has stated his main reason.
23.
For these reasons the appeal will be dismissed.
