The claimant had been dismissed after a series of absences from work, that were allegedly stress related. However she did not co-operate with any attempts to obtain medical reports and a report from a consultant occupational physician concluded that the DDA was unlikely to apply. Unfair dismissal and disability discrimination claims were issued but the respondent issued an application to strike out both claims as the claimant was not disabled and therefore the claim was misconceived. The employment judge struck out the claims, agreeing the claim was misconceived,  but refused an application for an award for costs for the disability claim largely because the work involved was the same for both claims. He  also rejected a submission that the DDA claims should not have been made in the first place on the strength of the consultant's report as that report was not conclusive and "tribunals should look at the actual evidence of impairment to carry out day-to-day activities."

In this judgment, HHJ Richardson finds that, although initially surprised by the judge's conclusion on overlap in practice he had been entitled to reach that conclusion, as with his decision on the lateness of the withdrawal. Another submission, that the claimant was barred by s32(2) of the Employment Act 2002, was also rejected following the realisation, on the morning of the EAT hearing, that the section had been repealed by the time of the claim.

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Appeal No. UKEAT/0087/11/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 June 2011

Before

HIS HONOUR JUDGE RICHARDSON (SITTING ALONE)

ADDACTION (APPELLANT)

MS S CHEEMA (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR Z DHAR (of Counsel)

Instructed by:
Sprecher Grier Halberstam LLP Solicitors
One America Square
Croswall
London
EC3N 2SG

For the Respondent
MS S CHEEMA (The Respondent in Person)

PRACTICE AND PROCEDURE – Costs

The Employment Judge did not err in law in refusing the Respondent's application for costs.

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.

1. 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.

1. 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."

1. 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.

1. 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.

1. 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."

1. 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.

1. 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."

1. 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."

1. 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.

1. Against this background I will consider each of the submissions put forward by Mr Dhar on behalf of Addaction.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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).

1. 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.

1. 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.

1. 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.

1. For these reasons the appeal will be dismissed.