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Case No: A2/2010/0237

Neutral Citation Number: [2010] EWCA Civ 1237

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(MR JUSTICE LANGSTAFF)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Thursday, 9th September 2010

Before:

LORD JUSTICE PILL

and

LORD JUSTICE RIMER

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TUCKER (**Appellant)

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PARTNERSHIP IN CARE LIMITED (Respondent)

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(DAR Transcript of WordWave International Limited
A Merrill Communications Company
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Official Shorthand Writers to the Court)

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Miss Susan Chan appeared on behalf of the Appellant.

Mr Edward Harte appeared on behalf of the Respondent.

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Judgment (As Approved by the Court)

Crown Copyright©

**Lord Justice Pill:
**1. This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dated 6 May 2010. The EAT dismissed an appeal against the Employment Tribunal by Miss Tucker in certain respects; she had succeeded before the Employment Tribunal in other respects. The Employment Tribunal decision is dated 30 April 2009, and these were the findings at page 57 of the bundle:

"1. It is the unanimous Judgment of the Tribunal that the Claimant was not discriminated against contrary to the provisions of the Disability Discrimination Act 1995 and her claim in this regard is dismissed.

1. The claim under Section 52(2) of the Disability Discrimination Act 1995 is dismissed.

1. The Claimant was unfairly dismissed contrary to the provisions of Section 98 of the Employment Rights Act 1996.

1. The claim under the Working Time Regulations 1998 is dismissed.

1. The Respondent was in breach of contract in failing to give the Claimant one week's notice or make a payment in lieu thereof.

1. The Tribunal finds that in respect of the claim for unfair dismissal there is a 20% contributory fault on the part of the Claimant."

1. The facts can be stated very briefly for present purposes. The applicant was employed by the respondent, Partnership in Care Limited, as a healthcare support worker from November 2005 until her summary dismissal on 26 April 2007. The reason given for the dismissal was misconduct under the provisions of section 98(2)(b) of the 1996 Act, namely that she had sworn at a patient. What the applicant claims is that there was a separate head of claim not dealt with by the Employment Tribunal, namely damages for their failure to make reasonable adjustments to her work arrangements, and reference has been made by Miss Chan, who appears on her behalf, to section 4A of the Disability Discrimination Act 1995. Reference has also been made to section 3A. The applicant was suffering from idiopathic intracranial hypertension, and claimed that adjustments to her work pattern were required, by way, for example, of fewer consecutive shifts, frequent rest breaks, and no night shifts. It is submitted, and was submitted to the EAT, that there was a separate cause of action, that is a freestanding claim, for the failure to make such adjustments, and that the Employment Tribunal should have considered that claim. There is no doubt that such a claim had originally been put forward by the applicant, and appears in her ET1:

"The claimant is claiming disability discrimination, victimization, and failure to make reasonable adjustments."

1. There was, as is customary, a prehearing review, at which the applicant was present. The order made on that review was, insofar as relevant, as follows:

"A1. The Claimant makes a complaint of unlawful disability discrimination.

A2. A complaint of unlawful disability discrimination arises both under Sections 3A and 4A of the Disability Discrimination Act 1995. The Claimant alleges:

A2.1 that she was dismissed in consequence of her disability and that having requested reasonable adjustments in accordance with Section 4A of the Act, which adjustments the Respondent failed to make, she was dismissed in consequence of her disability, and of her request for reasonable adjustments."

That paragraph appears to me to be clear. It is right, as Miss Chan points out, there had been a reference to section 4A of the 1995 Act, but the context is made clear in the order, as the basis for which the hearing was to be conducted, by A2.1; that is, that the failure to make adjustments was a cause of the dismissal:

"... having requested reasonable adjustments ... She was dismissed in consequence of her disability, and of her request for reasonable adjustments."

Thus, the failure to make adjustments was relied on as supporting a claim that her dismissal was not, as the respondent alleged, because of her swearing at a patient, but because of her request for adjustments.

1. The applicant sought a review of the decision of the Employment Tribunal, so that this point could be argued before it. Such a review was granted to the extent of the point being considered, but in a decision dated 30 April 2009 the application was refused. The Tribunal accepted at paragraph 2 that the employer had had a reasonable opportunity to rebut the contention of failure to make reasonable adjustments, and that opportunity had not been taken. Adjustments had not been made, and it was not claimed at the hearing that they had been. However, paragraph 3 provides at page 77:

"The problem that the Claimant faces in this claim is that allowing what the Respondent says about the ET3, namely that they did their best to answer a claim which they thought was unclear, we have the record of the Pre Hearing Review in which the Claims under Section 3A and 4A of the Disability Discrimination Act are clearly stated. The detriment in both cases was expressed to be the dismissal and it has to be said that on revisiting the Reserved Judgment and the notes which are available to the Tribunal, that was the way the case was pursued by the Claimant when it came for hearing. If the detriment was the dismissal and the dismissal was found not to be connected with the complaint under Section 3A or 4A, then the Claimant would have suffered no detriment in accordance with the evidence which was given and therefore the Tribunal today finds that the decision that it made on 29 May 2008 was correct and for the purposes of Regulation 36 the Tribunal confirms its judgment."

1. The EAT upheld that decision of the Employment Tribunal. In their conclusion at paragraph 37, they referred to section 4(2)(d) of the 1995 Act:

"It is unlawful for an employer to discriminate against a disabled person by dismissing him or subjecting him to any other detriment."

They held at paragraph 38 that the detriment needs to be identified and they accepted that the detriment identified and relied on was that of dismissal. They referred to the issue at paragraph 28:

"It is plain that the principal focus of the Tribunal's attention was on the question of dismissal. The Tribunal had to determine whether it was for reasons relating to disability, as the Claimant alleged, or whether it was because she had sworn at a patient as the Respondent alleged and had nothing to do with disability at all."

1. Miss Chan seeks permission to appeal against that decision. She submits that not only in the ET1, but subsequently, a freestanding claim was made on the basis of the failure to make adjustments; it was not merely a means of supporting a case for dismissal other than the reason given by the employers, that is the swearing at the patient. The EAT referred at paragraph 31 to the schedule of loss which had been submitted. It stated it did not:

"… identify loss or damage caused by or related to a detriment short of dismissal which had been suffered in respect of the failure to make reasonable adjustments."

Miss Chan, for the applicant, was inclined to accept that there could be no special damage claim under this head; she submits that if the matter is returned to the Employment Tribunal and the applicant succeeds, she could expect to obtain an award of general damages. That was not, it appears, stated in the schedule, even as a heading.

1. The EAT also referred to paragraph 26 of the decision of the Employment Tribunal. In her written submissions Miss Chan relied on that as establishing that the failure to make adjustments issue was before the Tribunal. It was for the purpose of the direction in the prehearing review; but I cannot read paragraph 26 as supporting the claim that there was a freestanding claim for failure to make adjustments. What the Tribunal was concerned with at paragraph 26 was whether the employer had a "hidden agenda". It stated:

"In addressing the issue of whether the Claimant's dismissal was the consequence of a hidden agenda, namely the swearing being an excuse to dismiss an employee whose absence record was considered unacceptable and whose disability and the need for adjustments might cause the Respondent embarrassment."

Having accepted that the employer had not complied with the reasonable adjustments proposed on behalf of the claimant, they rejected the submission that there was a hidden agenda:

"…the Tribunal is satisfied on the evidence that there was no hidden agenda. The dismissal was a consequence of the Claimant's conduct and not her disability or the requirement for the Respondent to make adjustments."

That confirms the view taken by the Tribunal that there was no freestanding claim and it establishes the context in which reliance was placed on behalf of the applicant on the failure to make adjustments.

1. This is a renewed application, having been refused on a consideration of the papers by Sedley LJ. I agree with his reasons. This court is not slow to give permission to correct an error of the EAT where there is a clear procedural failure; but in my judgment the ET were entitled at the review to take the view they did and the EAT were entitled to uphold it. The judgment of Langstaff J in the EAT is conspicuously careful, and addressed the issues.

1. Miss Chan was offered an opportunity to make submissions on a further point; that is, whether the Tribunal itself should have raised this issue in the light of the findings it made, namely that there was wrongful dismissal but not on substantive grounds. The finding was made on procedural grounds; the finding that disability had nothing to do with the dismissal was plainly made by the Employment Tribunal. Thus, the result was that each party succeeded to a degree. The employer succeeded in establishing that disability had nothing to do with the dismissal; the applicant succeeded to the extent of a finding of wrongful dismissal on other grounds, and there is to be a remedies hearing.

1. Given that opportunity, Miss Chan has properly referred to the leading cases on the subject: Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 and Rugamer v Sony Music Entertainment UK Ltd [2001] UKEAT 1385. In the light of those authorities she does not pursue that claim, accepting that of its own initiative the Tribunal was not under any duty in the applicant's favour, and Miss Chan repeats the point which is her central point, namely that that does not arise because the freestanding claim based on the failure to make reasonable adjustments was before the Tribunal in any event.

1. The submissions of Miss Chan have been forceful and sustained, but I am unable to conclude that there is a real prospect of success if permission is given. I want to say that I do respectfully agree with the concluding paragraphs of the EAT's judgment. At paragraph 40:

"The Tribunal may act where there is a litigant in person or where the litigant is represented, not by a professional lawyer but by some other representative such as a Trade Union representative or member of the CAB or whoever it may be, to assist the Claimant."

That is the basis on which the EAT has approached the question and expressed unease. The applicant was represented before the Employment Tribunal by a representative of the CAB; before the EAT she was represented by counsel, as of course she has been in this court. The nature of the representation is not, I agree with the EAT, a basis in this case for giving permission; indeed, the case before the ET appears to me to have been properly put, and I find it difficult to conclude that it was not without the applicant's concurrence that the case was put on the basis it was; that is, that the detriment alleged was dismissal, and the separate issue now sought to be argued did not arise.

1. For those reasons, I must refuse permission to appeal.

**Lord Justice Rimer:
**13. I would also refuse permission. My reading of the papers in this case caused me some unease as to whether there may perhaps have been an injustice to Miss Tucker at the Employment Tribunal. My reading, however, of the cogent judgment of Langstaff J on behalf of the Employment Appeal Tribunal satisfies me that he gave sound reasons for refusing Miss Tucker's appeal to that Tribunal and I am satisfied that that reasoning was correct. Miss Chan addressed forceful arguments to us, but did not persuade me that this court, if the matter were referred to it for an appeal, would take a view different from that taken by the Employment Appeal Tribunal.

1. Accordingly, I agree with my Lord, Lord Justice Pill, for the reasons that he has also given, that permission on this application should be refused.

Order: Application refused.