The claimant won her claims of unlawful disability discrimination on the basis of failure to make reasonable adjustments and detriment on the grounds that she had made one or more protected disclosures at the ET which were appealed by the respondent at the EAT. The EAT held that five findings made by the ET were perverse, and that other findings relating to the date the respondent should have known the claimant was disabled and the identification of the PCP were wrong. The EAT overturned the ET decision and the claimant has appealed to the Court of Appeal for permission to appeal.

The court gave permission to appeal. As to the perversity findings, it was arguable that none of them were as clear cut as the Employment Appeal Tribunal may have thought. The court also doubted whether they truly undermined the Employment Tribunal's entire approach to the case as the Employment Appeal Tribunal seems to have thought. As to the question of when the Appellant's disability was known to the Trust, it was arguable that the findings of the Employment Tribunal taken as a whole could add up to a proper basis for the finding that the Trust ought to have known from 2007 of the Appellant's disability. As to the question of the PCP and the reasonable adjustments that should have been made, it was arguable that the Employment Appeal Tribunal's criticisms were overstated. The court also ordered that the Appellant would not be at risk of a costs order being made against her if she lost her appeal.

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Neutral Citation Number: [2014] EWCA Civ 1094

A2/2014/0562 **

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE RICHARDSON)

Royal Courts of Justice

Strand

London, WC2A 2LL

Wednesday, 2 July 2014

B e f o r e:

LORD JUSTICE VOS

Between:

NORTHUMBERLAND TYNE & WEAR NHS FOUNDATION TRUST (Appellant)

v

GEOGHEGAN (Respondent)

DAR Transcript of the Stenograph Notes of

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LORD JUSTICE VOS:

1. This is the renewed oral application for permission to bring a second appeal from the decision of the Employment Appeal Tribunal (HHJ David Richardson sitting with Mr A Harris and Mrs M V McArthur FCIPD) dated 30 January 2014 whereby the Employment Appeal Tribunal dismissed the Appellant's claims against Northumberland Tyne and Wear NHS Foundation Trust ("the Trust"). The Appellant is Dr Geoghegan.

1. As this is a second appeal, the normal rule is that the Appellant has to show that there is an important point of principle or practice or some other compelling reason for the appeal to be heard: See paragraph 52.13 of page 1892 of the CPR. I asked Dr JJ Kelleher, Dr Geoghegan's husband who was given permission to appear for her this morning, whether that was the correct test since the Court of Appeal lawyer had indicated that the normal appeals test of the requirement being a real prospect of success was applicable. Dr Kelleher was not able to help me, nor was the Respondent's note taker. I shall look at the matter on both bases in case I have overlooked something in thinking that the second appeal test must be fulfilled. As it turns out, for reasons that I shall come to in due course, I do not think this question affects the ultimate outcome of the application whichever test I apply.

1. The Appellant is a consultant child and adolescent psychiatrist and child psychotherapist. She herself, however, suffers from a recurrent depressive disorder and attention deficit hyperactivity disorder or ADHD. The Appellant also seeks before me an order under Part 52.9A of the CPR limiting the recoverable costs against her in the event that permission to appeal is granted. Before I deal with the grounds of appeal from the Employment Appeal Tribunal, I should set out briefly the chronological background.

1. Between November 2002 and March 2003, the Appellant was absent from work due to work related stress. She had started work with the Trust in about the year 2000. On 7 November 2007, the first incident of which the Appellant complains took place between her and the Trust. Between February 2008 and February 2009, the Appellant was on sick leave due to work related stress. On 13 August 2008, during that period of sick leave, a Dr Tacchi diagnosed the Appellant with recurrent depressive disorder and probably ADHD.

1. Between February 2009 and February 2010, the Appellant returned to work. Many of the events complained of in this case occurred in that period between her and the Trust. On 3 February 2010, the Appellant started on sick leave after complaining to the acting Chief Executive of the Trust, a Mr Duncan, at a meeting on 18 January 2010. She alleged that she had been persistently bullied and undermined by various staff, including Mrs Lorna Farr, Dr Suresh Joseph, Dr Carol Kaplan and Dr Barry Chipchase. An investigation was undertaken by a Mr David Levy who reported on 19 March 2010 that he could find no evidence of bullying. On 28 April 2010, the Appellant presented her complaint to the Employment Tribunal. I do not believe that she has returned to work since that time.

1. On 2 October 2012, the Employment Tribunal, comprising Employment Judge Johnson, Mrs D Winter and Mr D McCabe, after 12 days of hearings and substantial delays, occasioned partly by the illness of one of the witnesses, allowed the Appellant's complaints of unlawful disability discrimination on the basis of failure to make reasonable adjustments and that the Appellant had been subjected to a detriment on the grounds that she had made one or more protected disclosures.

1. In brief outline, the Employment Tribunal found that the Trust's failure to make reasonable adjustments in respect of the Claimant's disability amounted to an ongoing situation or a continuing state of affairs throughout the relevant period from November 2007 to February 2010. The Trust's conduct towards the Appellant was calculated, deliberate and oppressive and implemented in the knowledge that it would impact upon the Appellant's ability not just to perform her duties, but also to attend work at all. The Employment Tribunal held that the protected disclosure complaints were made in time and that the Trust either knew or ought to have known that the Appellant suffered from a disability.

1. The PCP (provision criterion or practice) in question was, according to the Employment Tribunal, the Trust's failure to implement its own "stress at work" policy and "managing diversity policy". That amounted to a failure to take steps to proactively manage the Appellant's working hours and workload to reduce the diverse demands on her and to provide her with an appropriate structure for her work.

1. The Employment Tribunal held that the non-disabled comparators applicable to her case were other members of the clinical staff within the CAMHS Unit dealing with an equally heavy caseload of patients; the nature and extent of the substantial disadvantage that the Appellant suffered was her inability to cope with the Trust's demands that she increase her workload, no longer work from home, and take part in an on call rota, in addition to taking on patients in the 16 to 18 age group. The Appellant's mental impairment meant that she regarded this as bullying, harassment and demeaning her professional standing. The Employment Tribunal held that the Trust was under a duty to follow its own stress at work policy by way of reasonable adjustments for the Appellant's disability.

1. In relation to protected disclosures, the Employment Tribunal held that the Appellant had made 20 protected disclosures of information. The disclosures were all made in good faith and genuinely and reasonably believed to be true. The Trust's refusal to manage the Appellant sensitively and sympathetically was reinforced, so the Employment Tribunal held, by the cumulative effect of these protected disclosures. The detriment the Appellant suffered was isolation at work, exacerbation of her mental condition and eventually enforced absence from work.

1. The Employment Appeal Tribunal hearing took place on 20 and 21 August 2013. On 29 January 2014 the Employment Appeal Tribunal made its order giving the Trust permission to amend its notice of appeal in respect of the so called "360 degree feedback" point and allowing the Trust's appeal, remitting the matter for a rehearing before a freshly constituted Employment Tribunal.

1. The EAT held, in summary, that the Employment Tribunal had made five findings that were perverse; four of which I shall now mention. The first was that the Employment Tribunal had made a significant and perverse error leading to adverse criticism of two professionals on a wholly incorrect basis concerning the alleged so called "serious untoward incident" whereby the Appellant had contacted the father of a patient directly. The second finding of perversity related to the construction of Dr Barz's letter of 2 February 2008 as having said that he considered that the Appellant's condition fell under the remit of the Disability Discrimination Act when, according to the EAT, that is not what he had said. The third finding of perversity was that the Employment Tribunal had perversely criticised Mr Duncan for singularly and without justification failing properly to investigate both sides of the conflict between the parties. The fourth finding of perversity was that the Employment Tribunal had perversely found that the Trust's handling of the 360 degree feedback incident was "oppressive, inconsiderate and high handed" because it required its own procedure to be used properly. The fifth finding of perversity is less important and I shall not refer to it specifically.

1. As to the Trust's stated knowledge that the Appellant was disabled, the EAT held that the Employment Tribunal's reasoning was wrong, too general, did not focus on the precise date when the Trust knew or ought to have known that she was disabled and instead assumed that was the case from September 2007 when it had been agreed been the parties that it was known by the Trust from August 2008.

1. The EAT held that the only PCP found by the Employment Tribunal was the failure to apply its stress at work and diversity policies, but these were not alleged by the Appellant as the PCPs she relied upon. The Employment Appeal Tribunal then found that the Employment Tribunal failed to identify any practical steps it should have taken to fulfil its duty. Secondly, the Employment Appeal Tribunal held that the Employment Tribunal failed to identity any practical steps that the Trust should have taken to fulfil its duty. For example, it failed to mention that the Trust had already reduced the Appellant's workload to six cases per week.

1. In relation to protected disclosures, the Employment Appeal Tribunal held that the Employment Tribunal had failed to give adequate reasons for the specific issues that it had to decide. The Employment Tribunal did not give any proper reasons for concluding the disclosures contained information and before deciding that the Appellant had suffered a detriment. The Employment Appeal Tribunal then found that the perverse findings concerning Mr Duncan and the untoward incident affected these findings.

1. Finally, as to the time points, the Employment Appeal Tribunal held that the Employment Tribunal's conclusions on the time points could not stand because they had been bound up with the conclusions on the substantive issues.

1. On 16 April 2014, Sir Timothy Lloyd refused permission to appeal on the paper on the ground that there was no reasonable prospect of persuading the Court of Appeal that the Employment Appeal Tribunal had erred in law. Sir Timothy Lloyd applied a first appeals test as the Court of Appeal lawyer had asked that he should.

1. The Appellant's grounds of appeal can be summarised very broadly as follows from the quite lengthy documentation which Dr Geoghegan has filed or has been filed on her behalf.

1. First, it is said that the Employment Appeal Tribunal was wrong to hold that any of the five factual findings held to have been perverse were, in fact, perverse. Though there may have been some minor factual errors, the findings made by the Employment Tribunal were substantially sound.

1. Secondly, it is said that the Employment Tribunal did indeed consider carefully what the Trust knew about the Appellant's illness and concluded that they had known about it from at least 2007.

1. Thirdly, it is said that the PCP was properly pleaded in the Employment Tribunal in her ET1 as being, in essence, (i) requiring her to have an onerous workload expectation, (ii) having a shortage of staff available, (iii) requiring the Appellant to take on children aged 16 to 18, (iv) requiring the Appellant to join the "on call rota", and (v) not undertaking a personalised stress risk assessment.

1. The fourth ground of appeal in essence is that the reasonable adjustments that should have been made were clearly found by the Employment Tribunal, albeit not in the one place at the end of the decision to which the Employment Appeal Tribunal had regard. The reasonable adjustments that the Employment Tribunal held should have been made were (i) not overloading the Appellant with work, (ii) engaging adequate staff, (iii) not requiring her to take on 16 to 18 year olds and going on call, (iv) undertaking a proper risk assessment, and (v) not preventing her working two mornings a week at home as she had previously been permitted to do.

1. The fifth ground of appeal is that the findings of the Employment Tribunal on protected disclosures was satisfactory and not substantially challenged by the Employment Appeal Tribunal.

1. The sixth ground of appeal raises a number of points concerning the adverse and disparaging comments made by the Employment Appeal Tribunal during the hearing and the allegations of bias effectively made by the Employment Appeal Tribunal against the Employment Tribunal.

1. I have considered this case long and hard because it is a matter of great concern where two Tribunals expert in their field reach diametrically opposed conclusions. Moreover, I have been very concerned that the result of sending this case back to the Employment Tribunal for a new hearing will mean that it may never be resolved as it will simply be too costly to undertake yet another hearing. I have also been conscious of the tests for a second appeal that I have set out above, if indeed they are required to be satisfied.

1. As to the perversity findings, it seems to me arguable at least that none of them is as clear cut as the Employment Appeal Tribunal may have thought. I also harbour doubts as to whether, again arguably, they truly undermined the Employment Tribunal's entire approach to the case as the Employment Appeal Tribunal seems to have thought. Different factors will apply to different of those perversity factors, but the explanations provided for the findings in the Appellant's grounds of appeal seem to me at least to have some substance and require proper evaluation.

1. As to the question of when Dr Geoghegan's disability was known to the Trust, it seems to me to be at least well arguable that the findings of the Employment Tribunal taken as a whole could add up to a proper basis for the finding that the Trust ought to have known from 2007 of the Appellant's disability.

1. As to the question of the PCP and the reasonable adjustments that should have been made, I also think it well arguable that the Employment Appeal Tribunal's criticisms were overstated. Whilst the judgment of the Employment Tribunal is not a model of its kind and does not have all the findings on the question of PCP and reasonable adjustments in one place as would be desirable and whilst the judgment does state in paragraph 12.3 that a PCP is just the failure to apply the Trust's policies, it is at least arguably clear from a proper reading of the entirety of the decision taken as a whole that the Employment Tribunal was finding in favour of the Appellant that the Trust's PCPs were those listed by the Appellant in her ET1 to which I have referred and that the Trust ought to have made the reasonable adjustments to which I have also just referred.

1. As regards the protected disclosures, again I think it is arguable that the Employment Appeal Tribunal has overreacted to the limited reasoning at the end of the Employment Tribunal's decision and not taken the decision as a whole. It seems to me to be at least arguable that it will shown that there were good grounds for the findings made by the Employment Tribunal that were not undermined by the specifically isolated findings of perversity made by the Employment Appeal Tribunal.

1. The course of these proceedings has not thus far been a great credit to the justice system, I am sorry to say. The Employment Tribunal took a clear view on the evidence and the Employment Appeal Tribunal quite obviously took a completely different view although it had not seen or heard the witnesses. The Employment Appeal Tribunal picked out five material errors of fact that they classified as perverse upon which its judgment is based. It seems to me that that analysis requires further evaluation and consideration by this court in order to be sure that the Employment Appeal Tribunal's decision was truly justified.

1. If the matter goes back to the Employment Tribunal, it may necessitate, as I have said, another hugely costly 12 day hearing. In these circumstances, it seems to me to be proportionate to allow the Appellant permission to appeal. The appeal can be heard in one to one and a half days. If the Employment Tribunal's decision should truly, on proper analysis, stand, a great deal of costs will be avoided. I do not say that will be the result, but I am very concerned that the Employment Appeal Tribunal was unduly critical of the way the Employment Tribunal presented its reasoning rather than looking at the underlying findings it made and interpreting them properly. All of that will be a matter for the Court of Appeal that hears this case.

1. I return to the question of whether the proper appeals test is met. In my judgment, both the tests for a first appeal and the test for a second appeal are met in this case, so it does not matter which applies. There is, in my judgment, a real prospect of a successful appeal from the Employment Appeal Tribunal. Important points of law and practice are raised as to the PCPs and as to the findings of perversity, timing, reasonable adjustments and protected disclosures. In addition, there is a compelling reason for the appeal to be heard, as I have already indicated. I shall accordingly allow permission to appeal the application under Part 52.9A.

1. The Appellant has applied under Part 52.9A to limit the recoverable costs against the Appellant, as the recoverable costs were limited at the Employment Tribunal and Employment Appeal Tribunal level. The provisions of Part 52.9A are invoked for that reason. This is a case where, as I have said, there has been a stark contrast between the approach of the two Tribunals. It would be unfair to the Appellant, in my judgment, if she were to be at risk of adverse costs on the appeal to the Court of Appeal and I intend, therefore, to order that the Appellant shall not be at risk of an adverse costs order in pursuing her appeal to the Court of Appeal.

1. I will grant permission to appeal and make an order under Part 52.9A CPR that the Appellant shall not be at risk of an adverse costs order if she loses the appeal.