________________________

Appeal No. UKEAT/0322/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 June 2010

Before

HIS HONOUR JUDGE PETER CLARK

MR H SINGH

MS N SUTCLIFFE

MR D WIGGINTON (APPELLANT)

MR N J COWIE, MRS S COWIE AND MR S COWIE T/A BAXTER INTERNATIONAL (A PARTNERSHIP) (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR GARY SELF (of Counsel)

Instructed by:
Messrs Swain & Co Solicitors
3-5 South Street
Havant
PO9 1BU

For the Respondent
MR JAMES TILEY (Solicitor)
Northgate Arinso Employer Services
Warwick House
Hollins Brook Way
Pilsworth
Bury
BL9 8RR.

DISABILITY DISCRIMINATION – Disability

Employment Tribunal decision pre-dated House of Lords decision in SCA Packaging Ltd v Boyle [2009] IRLR 746, disapproving Employment Appeal Tribunal approach in Latchman [2002] ICR 1453 as to meaning of word 'likely' in para. 2(2)(b) of Schedule 1 to Disability Discrimination Act 1995.

Appeal allowed on Latchman misdirection and failure to ask the four sequential questions under s1 DDA identified in Goodwin v Patent Office [1994] IRLR 4.

'Bias' ground of appeal rejected but in allowing appeal case remitted to a fresh ET for hearing on disability question.

1. The parties in this matter, which has been proceeding in the Southampton Employment Tribunal, are Mr Wigginton, Claimant, and Baxter International, Respondent. This is an appeal by the Claimant against a reserved judgment of a Tribunal chaired by Employment Judge Craft, promulgated with reasons on 11 May 2009 following a pre-hearing review held on 11 December 2008 and 28 January 2009. The Tribunal considered their judgment in private on 11 March 2009. The issue before the Tribunal was whether or not the Claimant was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 as amended, (DDA). They found that he was not.

1. The appeal raises two broad grounds: whether the Claimant had a fair hearing (the fairness issue) and secondly whether the Tribunal erred in law in finding that he was not disabled (the substantive issue).

1. The Respondent is a small business dealing with commercial waste management. The partners are members of the Cowie family. It operated from a single office employing just two or three people. The Claimant commenced employment with the Respondent on 23 October 2006 as a Telesales/Marketing Representative.

1. On 12 December 2006 he was involved in a road traffic accident when a car emerged from a side road and collided with his vehicle. Prior to that accident, the Tribunal found (paragraph 53), the Claimant was not disabled. The question was whether he was disabled within the meaning of the DDA as at the relevant date, that is the date on which his employment was terminated by the Respondent, 22 August 2007.

1. It is convenient to deal first with this part of the Claimant's appeal.

1. The statutory definition of disability is contained in section 1 DDA, read with Schedule 1 and the Guidance issued by the Secretary of State in 2006 under section 3 of the Act,

1. Rule 30(6) of the Employment Tribunals Rule of Procedure 2004 enjoins Employment Tribunals to set out, in their reasons for judgment, the relevant issues; their findings of fact relevant to those issues; a concise statement of the applicable law and finally, and we think critically, how the relevant findings of fact and applicable law have been applied in order to determine the issue, in other words, how the Tribunal has reasoned their conclusion, applying the law to the facts as found.

1. Mr Self, now appearing for the Claimant, does not quarrel with the Employment Tribunal's statement of the applicable law set out at paragraphs 3-7 of their reasons. Insofar as there was a conflict of evidence between the Claimant and Mr Neil Cowie, who gave evidence on behalf of the Respondent, the Tribunal resolved those several factual issues in favour of the Respondent. Mr Self correctly recognises that it is not permissible to go behind those factual findings adverse to his cause before this Appeal Tribunal.

1. Where he directs his attack is to the Employment Tribunal's reasoning process and lack of findings on the material issues arising in the disability question. He also, for the first time in oral submissions before us today, without objection by Mr Tiley, draws our attention to the important, in the present context, House of Lords decision in SCA Packaging Ltd v Boyle [2009] IRLR 746. That decision, handed down on 1 July 2009, post dates the Employment Tribunal judgment in the present case.

1. In the early days of the DDA Morison P provided a valuable four step guide to the disability question in Goodwin v The Patent Office [1994] IRLR 4, paragraphs 26 to 29: (1) does the Claimant have a mental and/or physical impairment? (2) does the impairment affect the Claimant's ability to carry out normal day to day activities in one or more of the respects set out in paragraph 4(1) of Schedule 1 to the Act? (3) is the adverse condition substantial, that is more than minor or trivial? (4) is the adverse condition long term?

1. In Goodwin, the former President opined (paragraph 45) that the relevant provisions in paragraph 2 of Schedule 1 appeared to be straightforward. History has shown that to be an optimistic assessment. A difference arose in two strands of EAT authority which were finally resolved by the Court of Appeal in Richmond Adult Community College v McDougall [2008] IRLR 227, to which this Tribunal referred themselves (paragraph 7). The Court there held that in determining whether the effect of an impairment is long term, in that it is likely to last for at least 12 months (Schedule 1, paragraph 2(2)(b)) that question must be taken on the basis of evidence at the time (here 22 August 2007), rather than on the basis of what has happened since. The Tribunal correctly applied that guidance in the present case.

1. As to the meaning of the word likely, the cases showed that the appropriate test was whether the event was more probable than not (see, for example, Latchman v Reed Business Information Ltd [2002] ICR 1453 EAT, Lindsay P presiding. This Employment Tribunal so directed themselves. However, in SCA, upholding the approach of the Northern Ireland Court of Appeal in that case, the House of Lords held, unanimously, that likely did not mean what it had hitherto been understood to mean, but meant "could well happen", thus reducing the burden on the Claimant to show the relevant likelihood here and elsewhere in the Act. Latchman was disapproved.

1. Those being the issues in this case, how did the Tribunal resolve them?

1. As Mr Self points out, the Tribunal made no firm finding from what, if any, (a) physical and/or (b) mental impairment the Claimant suffered. In the road traffic accident he sustained what, from the earliest medical report of Dr Balkwill, instructed in connection with a proposed civil claim for personal injury on the Claimant's behalf, following his examination on 27 February 2007, appeared to be a fairly standard soft tissue whiplash injury, expected to resolve within about six to nine months from the date of the accident. However, a separate question arose as to whether the Claimant was also suffering from a degree of psychological overlay attributable to that accident.

1. Unhappily, in the Tribunal's conclusion section at paragraphs 54 to 58, the Tribunal has run together elements of the four sequential questions posed in Goodwin. That intermingling of the questions is exemplified at paragraph 54 where the word disability appears to be substituted for impairment and there is passing reference to the effects, whether they were substantial and whether they were long term.

1. Having found the Claimant's evidence to be unsatisfactory as to the effects of alleged impairment to some extent at paragraph 56, they then deal with the effect of whatever assumed impairment he suffered from, in accordance with paragraph 4(1) of Schedule 1 DDA at paragraph 57; some they reject, others they accept there was some evidence to support. However, they make no clear finding as to whether those latter effects were or were not substantial (paragraph 58), but instead focus ultimately on the long term question.

1. Here, the difficulty is that, through absolutely no fault of the Employment Tribunal, they applied the more prescriptive Latchman test, which has since been disapproved by the House of Lords. Since the House of Lords (now the Supreme Court) does not make new law but merely reveals the law as it has always been, we must apply it.

1. Stepping back, we might have been able to accept Mr Tiley's submission that the Tribunal reached a permissible conclusion on the long term question, assuming the earlier three questions in the Claimant's favour, although there is force in Mr Self's response that the Tribunal did not clearly specify what assumptions (as opposed to findings) they were making in the Claimant's favour on those three earlier questions. However, the decision on the long term question cannot stand in view of the misdirection applying SCA.

1. In these circumstances, irrespective of the general merits of the case, which are not for us to determine, we accept Mr Self's submission that the Tribunal has not correctly applied the law to the facts and for this reason the appeal must be allowed.

1. Having considered the Claimant's complaints about the second day of hearing before the Employment Tribunal, and the Tribunal panel members' responses, we should not have allowed the appeal on this ground. We are satisfied that the Claimant had a fair hearing below. However, the point is now moot in light of our decision on the substantive issue, subject to one further consideration.

1. Having allowed the appeal, plainly the disability question must return to the Employment Tribunal for rehearing. The question is whether that hearing ought to take place before the same or a different Tribunal, applying the law as we have stated it to be. We prefer Mr Self's submission that the case should return to a fresh Tribunal to that of Mr Tiley that it should go back to the same Tribunal. In that way any subconscious tendency for the original Tribunal to arrive at the same conclusion is removed, as is any perception by the Claimant of pre determination if the case went back to the same Tribunal who then reached the same result.

1. Accordingly this appeal is allowed and the issue as to whether the Claimant is disabled for purpose of DDA is remitted to a fresh Employment Tribunal for rehearing.