The claimant had lost the use of her right eye following a surgical accident and her duties were changed even though she insisted she was unaffected. She eventually resigned and started proceedings for unfair dismissal and disability discrimination. On her ET1 she ticked the disability box but also stated that she had been certified 100% fit for her duties by an eye hospital. The claim was out of time but the ET ordered that the claim be listed for a pre-hearing review to determine whether it had jurisdiction to hear the claims.   In advance of that hearing, the claimant was asked to provide particulars of her disability in which she stated that she was not disabled and that it was her manager who said she was. In further particulars she added that she "did not realise that she had to be disabled to be discriminated against ." At the PHR though the judge concluded, without any medical evidence, that the claimant was disabled and that it was just and equitable to extend the time limits.

In this appeal, HHJ Birtles reviews the four grounds of appeal in turn and concludes that: i) the  procedure was unfair as the judge should have flagged the issue and given the parties the opportunity to deal with it, which had not been the case; ii) in the absence of evidence it was impossible for the judge to have concluded that the injury had a substantial effect on the ability to carry out duties and that this finding was perverse. The judge had also failed to apply the correct legal test and had erred in law; iii) the claimant's concessions were fully informed, as she had received legal advice, and clearly made so there were no compelling reasons for the  concessions to be withdrawn; iv) in that light it was not just and equitable to extend the time-limits.

___________________

Appeal No. UKEAT/0293/09/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 12 November 2009

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

LONDON BOROUGH OF REDBRIDGE (APPELLANT)

MRS S C BAYNES (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES
For the Appellant
MR MATTHEW PURCHASE
(of Counsel)
Instructed by:
London Borough of Redbridge
Legal & Constitutional Services
128-142 High Road
Town Hall
Ilford
IG1 1DD

For the Respondent
MS SABRINA SULLIVAN
(Representative)
Disability Law Alliance
39-45 Cavell Street
London
E1 2BP

**SUMMARY
**DISABILITY DISCRIMINATION
Disability

Employment Judge erred in finding that the Claimant was disabled in the face of the Claimant's assertions that she was not disabled and in the absence of any medical evidence.  He was therefore in error in allowing the claim for disability discrimination to be brought out of time.  The EAT refused to permit the Claimant to withdraw her concession that she was not disabled: Jones v The Governing Body of Burdett Coutts School [1998] IRLR 521 applied.

**HIS HONOUR JUDGE BIRTLES
Introduction
**1.This is an appeal from a pre-hearing review conducted by Employment Judge Ferris sitting at Stratford on 3 April 2009.  The judgment was sent to the parties and entered in the register on 22 April 2009.  The Judge gave judgment immediately at the end of the hearing.

2.The Employment Judge decided three matters: (1) that the Claimant's claim for unfair dismissal was out of time and it was reasonably practicable for her to have made the claim in time.  There is no appeal against that decision; (2) the Claimant was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 as amended; (3) the Claimant's claim for disability discrimination was out of time, but it was just and equitable to extend time to allow her to bring such a claim.  He gave various reasons for doing so.  The Appellant local authority appeals against findings (2) and (3).

3.At the hearing of the appeal today the Appellant, the London Borough of Redbridge, is represented by Mr Matthew Purchase of Counsel and the Respondent, Mrs Baynes, has been represented by Ms Sabrina Sullivan from the Disability Law Alliance.

**The Material Facts
**4.The Claimant commenced employment with the Respondent on 13 June 1994.  It appears that at some point as a consequence of surgical procedures she suffered the loss of sight in her right eye.  She complains that her manager changed her duties as a result and thereby subjected her to a detriment.  On 6 January 2008 she gave notice of her resignation (appeal bundle page 46).  The effective date of termination of her employment was 6 February 2008 (judgment paragraph 5).

5.The Claimant raised a grievance on 18 February 2008 (appeal bundle pages 47-49) which stated that:

"… I have taken legal advice from Mr Morris at Morris and Co Solicitors of Chelmsford ..."

6.On 10 September 2008 the Claimant presented a claim for unfair constructive dismissal and disability discrimination (appeal bundle pages 13-22).  At section 6 of her claim form, which deals with discrimination, she has ticked the box marked "disability" and in paragraph 6.2 says this:

"On various occasions from September 2002 until February 2008 my manager, Mr Terry Bowe, constantly and openly referred to, what he called 'my disability', i.e. my vision.  Despite me being certified in writing from Moorfields Eye Hospital as being 100% fit for my duties."

7.The Tribunal found at paragraphs 3 and 13 of its judgment that both claims should have been presented by 5 August 2008 and were accordingly out of time.  Accordingly, on 3 December 2008 the Tribunal ordered that the case be listed for a pre-hearing review to deal with whether it had jurisdiction to hear the claims with regard to the statutory time limits.  Those were the only issues before the Tribunal on 3 April 2009.

8.On the same date, 3 December 2008, the Tribunal ordered the Claimant to provide particulars of, among other things, the facts upon which she relied in stating that she was a disabled person (appeal bundle pages 27-28).  The Tribunal asked the Claimant to provide details of the individual factual elements of the definition of disability as set out in section 1 of the 1995 Act.  On 10 December the Claimant provided the required particulars (appeal bundle pages 22(a)-22(b)).

9.The letter answers each of the specific questions raised by the Employment Tribunal.  In particular paragraph 1:

"1.  I am not disabled.  My Manager was the one who called the loss of sight in my right eye a disability.

i)  The condition from which I suffer causes no physical or mental impairment. 
v(f)  - eyesight.  As always stated, this had no effect on my normal day-to-day activities and which was confirmed by Moorfields Eye Hospital.

2.  As I have always stated, I do not have a disability.  It was my Manager who called the loss of my sight in my right eye a disability and therefore said that I was not able to do my usual day to day activities."

10.On 11 February 2009 the Employment Tribunal sent a notice of pre-hearing review confirming that the issues were confined to those set out in its letter of 3 December 2008; in other words, the two limitation issues.  On 19 February 2009 the Tribunal wrote to the parties stating the following:

"Employment Judge Gilbert has directed me to inform both parties that a Pre Hearing review was set up in this case to consider whether the Claimant had submitted her complaints of constructive dismissal and unfair dismissal and disability discrimination in time.

The Claimant has now submitted additional information about her disability and says she is not disabled."

11.That is quite clearly a reference back to the letter of 10 December 2008.  The letter from the Employment Tribunal goes on:

"Can the Claimant please say how she is pursuing a claim under the Disability Discrimination Act if she does not have a disability.

Please reply on or before 5 March 2009."

12.On 5 March the Tribunal again ordered the Claimant to provide particulars of, among other things:

"… the facts upon which you rely in stating you are a disabled person ..."

13.On 9 March 2009 the Claimant provided the required particulars (appeal bundle pages 22(c)-22(d)).  The material parts read as follows:

"1.  I was advised by the Citizens Advice Bureau that I am classed as disabled as I only have the use of one eye.  However, as I am able to carry out my day to day duties, I class myself as not being disabled.  My loss of sight in my right eye was treated as a disability by my Manager.  He changed my duties because he felt that I was no longer able to carry out my usual job.  I feel that he discriminated against my sight.  I did not realise that I had to be disabled as well to be discriminated against."

14.There are then a series of answers to specific questions and I refer to:

"v(f)  - eyesight.  As always stated, this had no effect on my normal day-to-day activities and which was confirmed by Moorfields Eye Hospital.  It did not affect my speech or hearing.

(g)  It did not affect my memory, concentration, learning or understanding.

2.  As I have always stated, I have never felt that I am disabled.  It was my Manager who called the loss of my sight in my right eye a disability and therefore said that I was not able to do my usual day to day activities.

3.  I do not feel that this section applies to me because I do not have a disability so did not expect the London Borough of Redbridge to do anything for me.  Unfortunately, it was LBR who treated me incorrectly by stating that I could not do my job due to my disability - a loss of sight in my right eye."

15.The pre-hearing review was held on 3 April 2009 before Employment Judge Ferris.  Neither party produced medical evidence.  There appears to be a conflict as to whether Mrs Baynes gave evidence on oath but I accept for the purposes of this appeal that she did; however, it was very short.  She was not asked, and this I think is conceded by Ms Sullivan, any questions at all about whether the loss of sight in one eye had any effect at all upon her normal day-to-day activities.  The solicitor representing the London Borough of Redbridge did not cross-examine her.  It may well be that she was not invited to do so.

16.In making submissions in respect of the questions to whether or not it was just and equitable to extend time, the Respondent did raise the point that on the Claimant's own case she was not saying that she was disabled.  If she was not disabled it could not be just and equitable to extend time.

17.At the end of the hearing Judge Ferris gave judgment.  The material part of his judgment it says this at paragraph 11:

"The Tribunal's jurisdiction depends first on the Claimant being a disabled person for the purpose of the Disability Discrimination Act 1995.  There is an initial difficulty here because the Claimant, who is a strong-minded person, and able-bodied in all respects but one, insists that she is not disabled (despite ticking the box on the ET1 to make a DDA claim).  However, the Claimant has lost the sight of one eye.  In my judgment and not withstanding the Claimant's proud stance in relation to this issue, the Claimant therefore has a physical impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities."

18.That is the sole finding by the Employment Judge in his judgment in relation to this issue.  He then goes on to deal in brief with the complaint and gives reasons in paragraph 13 and 14 as to why it was just and equitable to extend time.  Those other reasons are not in issue in this appeal.

The Notice of Appeal
19.The Notice of Appeal appears at EAT bundle pages 6-10.  The Respondent's answer is at EAT bundle pages 11-12(e).

The Grounds of Appeal
20.Before turning to the grounds of appeal I shall say something briefly about the law relating to disability.  Section 1 of the Disability Discrimination Act 1995 says this:

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act "disabled person" means a person who has a disability."

21.There is extensive guidance in the Secretary of State's Guidance as to the definition of disability.  Neither Section 1 nor that guidance was referred to by the Employment Judge.  In Boyle v SCA Packaging Limited [2009] UKHL 37; [2009] ICR 1056 at paragraph 22, Lord Rodger of Earlsferry said this:

"(22) What the tribunal was going to decide, therefore, was whether Ms Boyle was a "disabled person" within the meaning of section 1(2) of the 1995 Act during the relevant period. If the tribunal decided that she was not, then that would be the end of the three complaints under the 1995 Act. If it decided that she was, it would have to go on to hear evidence on the substance of the three complaints.

(23) Mr Allen QC, who appeared for the Equality and Human Rights Commission, intervening in the absence of any representation for Ms Boyle before the House, described this issue as a "threshold issue". I should prefer to say that, since no one can be the victim of discrimination under the 1995 Act unless he or she is a "disabled person", whether or not the applicant is a disabled person is a key element in any complaint. In short, the Act applies because a person is disabled - not vice versa. As Mr Allen said, the equivalent questions are not usually contentious in sex discrimination or race discrimination cases. The 1995 Act is different in this respect: the definition of a "disabled person" for the purposes of the Act is elaborated in Schedule 1 and can give rise to quite complicated and potentially contentious issues. In this case one such issue is only now being finally resolved, many years after Ms Boyle's applications were lodged with the industrial tribunal."

22.I take each of the Appellant's grounds in turn.

*Ground 1 - Decision Procedurally Unfair
*23.This is raised in the Notice of Appeal, paragraph 16(c):

"The decision was procedurally unfair in that the substantive issue as to whether the Claimant was or was not disabled was not listed as an issue to be determined at the Pre-Hearing Review.  Accordingly, the Respondent had not had an opportunity to prepare to deal with the point."

24.Ms Sullivan, for Mrs Baynes, in fact makes the same point.  She tells me, and I accept, that Mrs Baynes thought that the hearing before Judge Ferris was to be confined to the two issues of extension of time, not the separate issue as to whether or not she was disabled within the meaning of Section 1 of the 1995 Act.  She was not prepared to deal with the issue.  The issue was flagged up by the Appellant but the Appellant's counsel was also not in a position to deal with the matter.  It appears to have been dealt with, from what I have been told by Ms Sullivan, by the Employment Judge taking a strong line and really telling Mrs Baynes that she was disabled within the meaning of the Act; a position from which not surprisingly Mrs Baynes, who was unrepresented, did not dissent.

25.In my judgment it was wrong for the Employment Judge to deal with the matter in the way that he did procedurally.  Clearly the issue of extending time in a disability discrimination case must depend on whether the person also qualifies as a disabled person within the meaning of Section 1 of the Act.  The Employment Judge should have flagged that up and given both parties the opportunity to deal with it.  In the normal case it is dealt with either at a pre-hearing review or at the full hearing.  It would often, as it would in this case, require the giving of evidence which might well include medical evidence as well as the Claimant giving evidence as to whether or not there is a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.  That would require a witness statement.  There was no such witness statement in this case, not surprisingly in the circumstances, because Mrs Baynes had not expected to have to deal with the issue.

26.In my judgment it was procedurally wrong for the Employment Judge to deal with the matter in the way that he did.  The proper course of action would have been for him to adjourn that issue and indeed the issue of whether or not it was just and equitable to extend time to a further hearing.

Ground 2 - Deciding the Claimant was a Disabled Person
27.This is raised in the Notice of Appeal at paragraph 16(b):

"The tribunal's decision was based on no evidence and/or was perverse in light of the Claimant's admissions and the absence of evidence to the contrary."

28.In my judgment, as I have indicated, no evidence was effectively called or invited.  There is no reference in the judgment to either Section 1 or Schedule 1 of the Act or the Guidance of the Secretary of State.  The Employment Judge clearly based his decision only on what he said in paragraph 11 of his judgment which I have already read.  In the absence of evidence it is impossible to see how the Employment Judge could have found that the loss of one eye:

"… has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities."

in the light of the Respondent's assertions to the contrary.

29.As Mr Purchase has pointed out, the Claimant's written case in her answers to the Employment Tribunal questions dated 10 December 2008 and 9 March 2009 are very clearly to the opposite effect.  It is not just a question of Mrs Baynes saying, "I am not disabled" she goes on to answer in detail the specific questions asked by the Employment Tribunal which are based upon Schedule 1 and the Secretary of State's Guidance.

30.In my judgment the Employment Judge failed to properly consider the legal test under Section 1 of the 1995 Act.  That was an error of law.  I also find that his finding in paragraph 11 that the Claimant was disabled on the evidence before him, was perverse.

Ground 3 - Ignoring the Claimant's Concession
31.This is in the Notice of Appeal at paragraph 16(a):

"The Claimant's own case was that she was not a disabled person and/or that she made express admissions as to relevant facts which lead to the irresistible conclusion that she was not a disabled person.  It is not permissible as a matter of law for the tribunal to go behind the Claimant's own case and admissions, particularly when she had been given a full opportunity to consider her position."

32.Mr Purchase refers me to the decision of the Court of Appeal in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074; [2002] ICR 1498 and in particular to the judgment of Mummery LJ at paragraph 26 where he said this:

"As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more pro-active role in disability discrimination cases, as they can be complex and involve applicants, whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment.  I do not think that it would be helpful to describe the role the Employment Tribunal as "inquisitorial" or as "pro-active." Its role is to adjudicate on disputes between the parties on issues of fact and law.  I agree with the guidance recently given by Lindsay J in Morgan v. Staffordshire University [2002] ICR 475, 483, paragraph 20.  The onus is on the applicant to prove the impairment on the conventional balance of probabilities.  In many cases there will be no issue about impairment.  If there is an issue on impairment, evidence will be needed to prove impairment.  Some will be difficult borderline cases.  It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties.  That is a matter for the parties and their advisers.  Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and the limited resources available to many parties in the employment tribunal.  The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained on the issue of impairment."

33.I have read the letters from Mrs Baynes dated 10 December 2008 and 9 March 2009.  In addition, in her claim form (appeal bundle page 18 which I have also read) she says this:

"Despite me being certified in writing from Moorfields Eye Hospital as being 100% fit for my duties."

34.Finally, I note that her grievance letter, dated 18 February 2008 (EAT bundle page 47) states that she has had advice from Mr Morris of Morris & Co, Solicitors of Chelmsford.  Her answer dated 9 March 2009 (EAT bundle pages 22(c)-22(d)) make it clear that she has had advice from the Citizens Advice Bureau.

35.In my judgment the statements that she made in those two letters and her ET1 are fully informed concessions.  Her case, right up to the hearing before Employment Judge Ferris was that she was not disabled within the meaning of the Act.  As I have indicated, the answers in those two letters of 10 December 2008 and 9 March 2009 are very detailed indeed and specifically address the requirements of the Act.  They are not bald assertions of not being disabled.

36.The issue is perhaps best dealt with in the case of Jones v The Governing Body of Burdett Coutts School [1998] EWCA Civ 602; [1998] IRLR 521 at paragraphs 20-21 in the judgment of Robert Walker LJ:

"(20)  These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk, the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Newcastle, the Employment Appeal Tribunal (presided over by Talbot J) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer, this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302, 307, that is to follow:

'The well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below.'

(21)  In this case the Employment Appeal Tribunal recognised that the consequence of allowing Mr Jones's appeal would be a new hearing with fresh evidence (so far as that can be an appropriate term for evidence given in 1998 of events of five years ago): [19971 ICR at pp:398—9. It was therefore a case in which the Employment Appeal Tribunal would have had to have exceptionally compelling reasons for taking such an unusual course. It is necessary to consider the course of the proceedings to see whether there were such compelling reasons."

37.The Court of Appeal went on to find that the Employment Appeal Tribunal did not have such compelling reasons.  Applying the authorities in that passage I am not prepared to allow Mrs Baynes to withdraw the concession that she made before the Employment Tribunal.  My reasons are these; firstly, it was a concession clearly made.  It was made in the ET1 and in the letters of 10 December 2008 and 9 March 2009.  As I have pointed out, those letters were detailed.  They specifically addressed the statutory requirements as to whether or not she was disabled within the meaning of the Act.  It was informed also because she had had advice from solicitors and the Citizens Advice Bureau.

38.Second, there is no suggestion that Mrs Baynes did not know what she was doing.  As she said herself in one of her letters she did not know that she had to be disabled within the meaning of the Act to be discriminated against.  Her case was effectively that it was the perception of her Line Manager that was the cause of the discrimination, not the fact that she satisfied the statutory requirement of being a disabled person.  Third, I am satisfied that if this concession was withdrawn it would require remission to an Employment Tribunal for there to be a hearing on the issue of whether or not Mrs Baynes is disabled within the meaning of the Act.  That would probably require the calling of medical evidence on both sides.  It would require Mrs Baynes to prepare a witness statement and give evidence that she has not given before and be cross-examined upon it.  It might well require the Appellant to call one or more of Mrs Baynes' work colleagues.

Ground 4 - Just and Equitable
39.This appears in the Appellant's Notice of Appeal at paragraph 17.  As the issue as to whether the Claimant was a disabled person was material to the decision as to whether it was just and equitable to extend time the Tribunal also erred in law in concluding it was just and equitable to extend time.  Since I have found that the Employment Judge was in error in deciding that Mrs Baynes was disabled within the meaning of the Act in paragraph 11 of his judgment it follows that he could not have gone on to decide that it was just and equitable to extend time.  For those reasons the appeal will be allowed.

Disposal
40.Mr Purchase makes these submissions.  He says first, if I do not permit the withdrawal of the concession then second, it follows that the Claimant is bound to fail in her claim for an extension of time because it would not be just and equitable to extend time to a person who is not a disabled person within the meaning of the Act.  He therefore says that I should stand in the position of the Employment Tribunal and dismiss the appeal.  In other words, there is nothing to remit.

41.Ms Sullivan says that the matter should go back to the Employment Tribunal for them to consider whether or not Mrs Baynes should be permitted to withdraw her concession and make any necessary amendment to her claim form and only then could the Tribunal go on to consider the just and equitable point.

42.I prefer the submissions of Mr Purchase.  For the reasons I have already given, this is not a case where this concession can or should be withdrawn at this Tribunal.  It follows that it cannot be withdrawn at the Employment Tribunal.  On that basis there can only be a finding that Mrs Baynes is not a disabled person for the purposes of the Act.  It cannot therefore be just and equitable to extend time.  It follows there is no purpose whatsoever in remitting this case to an Employment Tribunal.

43.In those circumstances the order I make will be: (1) appeal allowed; (2) claim dismissed.