___________________
Case No: A2/2009/2486
Neutral Citation Number: [2010] EWCA Civ 620
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MRS JUSTICE COX)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 18th May 2010

Before:

LORD JUSTICE MAURICE KAY

• - - - - - - - - - - - - - - - - - - - -

Between:

**C (Appellant)

• and -
  

M LTD (Respondent)**

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -

The Applicant appeared in person.

The Respondent did not appear and was not represented.

• - - - - - - - - - - - - - - - - - - - -
  

Judgment (As Approved by the Court)

Crown Copyright ©

**Lord Justice Maurice Kay:  
**1.This is an application for permission to appeal.  The applicant was unsuccessful in an application to the Employment Tribunal which held a hearing over three days in October 2008.  She appealed to the Employment Appeal Tribunal.  There her proposed appeal was initially sifted out pursuant to rule 3.7 of the EAT rules.  However, she applied under rule 3.10 and her application was rejected at that stage.  The final decision of the EAT is in the form of a judgment by Cox J and it is against that which she now seeks permission to appeal.

2.Appeals to and from the EAT are of course only permitted on points of law.  It is plain that the applicant has a sense of grievance about the processing of her case in the Employment Tribunal and the EAT.  Her troubles began with an incident in January 2007 when she says she was sexually assaulted whilst at work.  That incident gave rise to Employment Tribunal proceedings but they were settled in October 2007.

3.The present case concerned subsequent complaints of unfair dismissal, sex discrimination, sex victimisation and disability discrimination.  In brief, the applicant was off work between 13 January 2007 and 11 February 2008, when she was dismissed.  Her case throughout has been that that absence was caused by the sexual assaults to which I have referred, that she was medically unfit and technically disabled during that period and that her employer discriminated against her and victimised her on grounds of sex and discriminated against her and failed to make reasonable adjustments by reference to her disability before finally unfairly dismissing her.

4.Her claim on this occasion failed comprehensively in the Employment Tribunal.  She feels strongly about that.  She says repeatedly that the Sex Discrimination Act and the Disability Discrimination Act "were not applied" and that so far as disability is concerned, she has been "covered under the Act" as a result of a medical report some time ago.

5.The Employment Tribunal had to consider the case in the light of the evidence that was before it.  The first thing to say about the extended reasons provided by the Employment Tribunal is that they faithfully set out the statutory provisions and relevant authorities.  In other words, it is utterly impossible to say that the Employment Tribunal misdirected itself as to the law.

6.Between paragraphs 40 and 58 of the Employment Tribunal decision the Tribunal sets out why it dismissed the applicant's complaints.  So far as unfair dismissal is concerned, the majority of the Tribunal came to the view, based on a letter of 11 February 2008, that the reason for the dismissal of the applicant related to her inability to continue to do her job.  It seems to me that that was a fact material for determination by the Employment Tribunal and it is impossible to say that it was a conclusion that the majority of the Tribunal were not entitled to reach.  Having reached it, the question was whether, nevertheless, pursuant to section 98(4) the employer had acted reasonably in all the circumstances.  As to that, the Employment Tribunal reached the unanimous view that there was no unfairness in the dismissal and that the employer had acted so reasonably.

7.In paragraph 45, the Employment Tribunal said:

"There had clearly been an extensive series of attempts made by the Respondent to engage the Claimant in the sickness absence process so that a decision could be made as to the Claimant's future employment.  The Claimant refused to engage in that process and it was as a result of that failure to engage that the matter evolved to the point where she was dismissed on 8 February."

8.Of course I accept that the applicant does not agree with that analysis of the facts.  However, the evidence was before the Employment Tribunal and it seems to me that the factual finding is unassailable.  From time to time during her submissions the applicant has made allegations of bias and suggested that the decisions that have gone against her have gone against her because of her litigation history, but there is no material whatsoever to support that.

9.So far as sex discrimination and victimisation are concerned, the Employment Tribunal correctly directed itself as to the statutory provisions on the burden of proof in the light of decisions in this court in Igen v Wong [2005] EWCA Civ 142; [2005] IRLR 258 and Madarassy v Nomura International Plc [2007] EWCA Civ 33;  [2007] IRLR 246.  The conclusion was in both respects that the applicant had not established facts so as to get over the first stage from which it could be inferred that her dismissal was related to her sex.  The Tribunal pronounced itself "quite satisfied" that it was not.  In paragraph 47 it stated:

"All the evidence drives us to the conclusion that her dismissal was caused by the failure to engage in the sickness/absence procedure."

10.That is again not how the applicant sees it, but it was how the Employment Tribunal analysed it and I have no doubt that they were acting within the scope of their remit by so doing.  The Tribunal rejected the assertion that the employer had acted in the way that it did because of the previous history and the previous litigation.  It was satisfied that the employer "was making a genuine attempt to find out what the position was and to try and see a way to secure her return to work" (paragraph 51).  In paragraph 52 it concluded that the conduct of the applicant in refusing to engage in the process "made it almost impossible" for the employer to come to any other conclusion but to terminate her employment.  So for all these reasons, both the unfair dismissal and sex and disability discrimination and victimisation claims were rejected.

11.After that there was an application for review which was rejected on several issues but there was a review in relation to the issue of disability.  That resulted in a further hearing on 1 May 2009.  The Tribunal accepted that on the earlier occasion it ought to have determined as a preliminary matter whether disability was or was not established.  On 1 May 2009 the Employment Tribunal heard evidence and came to conclusions on the subject of disability.  Again it correctly directed itself as to the law and it set out section 1 of the Disability Discrimination Act.  It concluded that the relevant impairment was a physical impairment and not a mental impairment, but in assessing the evidence of the applicant and medical witness, Dr Bowman, it came to the conclusion that it accepted the evidence of Dr Bowman.  Its ultimate conclusion was that whilst the applicant had suffered from a physical impairment which lasted at least twelve months, it had not had a substantial adverse effect on her ability to carry out day to day activities.  It was therefore unable to conclude that she is a disabled person for the purposes of the Act.  Again, the applicant does not accept that factual finding and repeatedly refers to the earlier medical report to which I have referred, but the Tribunal heard the evidence and came to its conclusion.

12.It seems to me that in all these respects the two judges who considered the case in the EAT, first Judge Peter Clark and secondly Cox J, came to the inevitable conclusion that the applicant, however strong may be her sense of grievance, has simply not established an arguable error of law on the part of the Employment Tribunal.  That was the case in the EAT; it is the case here.  In those circumstances she does not have a proposed appeal with a real prospect of success and accordingly it is my duty to refuse her permission to appeal.

13.I make it clear that I accept that she has strong feelings about this matter and I am content to assume that the sexual assault to which I have referred was traumatic at the time and that she still is affected by it.  However, that does not assist her in this application.  As I said initially, the incident gave rise to earlier litigation that was settled.  The question for the Employment Tribunal, EAT and me on this occasion is limited to the way in which the employer considered the matter during the applicant's lengthy absence from work before she was dismissed.

14.Although she finds it hard to accept, I can see no real error in the way in which the Employment Tribunal and the EAT had reached its conclusions about that.  Accordingly, the application is refused.

Order: Application refused