Case No: A2/2012/1509
Neutral Citation Number: [2013] EWCA Civ 140
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Employment Appeal Tribunal
(THE HONOUABLE MR JUSTICE WILKIE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16 January 2013

Before:

LORD JUSTICE MUMMERY

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Between:

	SUD
	
Appellant	
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LONDON BOROUGH OF EALING	

Respondent	

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Miss D Sen Gupta (instructed by under the Direct Access Scheme) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment
Lord Justice Mummery:

1.	This is a renewed application for permission to appeal.  The decision which Mrs Sud, the applicant, wishes to appeal is that of the Employment Appeal Tribunal in May 2012 when the Employment Appeal Tribunal did not allow her appeals from decisions of the Employment Tribunal in respect of her claims against her former employer, London Borough of Ealing.  Those decisions of 14 December 2009 and 14 May 2010 were in relation to disability discrimination claims and in relation to a successful application that was made by the London Borough of Ealing for a proportion of their costs (50 per cent) to be ordered against Mrs Sud.

2.	As it is an appeal in an employment matter, not only is permission to appeal required but the grounds on which permission can be granted are limited.  The position is that an appeal can only be brought in a case, say, of disability discrimination at work in a case where there is an error of law by the fact-finding tribunal.  There cannot be any appeal against findings of fact, unless there was some error of law committed by the tribunal in finding the facts, such as finding facts which there is no evidence or finding facts which are in direct contradiction of agreed evidence or uncontradicted evidence.  So there has to be an arguable point of law for permission to appeal and it has to have a real prospect of success.

3.	Permission to appeal was not granted by the Employment Appeal Tribunal, so an application was made to this court, and that was first considered by Elias LJ on the papers and on 13 November 2012 an order was issued recording his decision refusing permission.  As permission was refused, the application has been renewed.  But the circumstances have rather changed since Elias LJ's decision.  I will return to that in a moment, because that states in some detail the reason for his refusal.  Elias LJ is one of the appeal judges who has long experience in this area of the law.

4.	Since Elias LJ's order in November the Bar Pro Bono Unit has taken on Mrs Sud's case and instructed Ms Gupta first to prepare a supplemental skeleton argument for the permission hearing today; that is dated 10 January 2013; it was not available to Elias LJ.  Then, in addition to that, there has been supplied today Ms Gupta's advocate's note for today's hearing, explaining a further point which she would wish to include as a ground of appeal.

5.	I have considered the skeleton argument and the advocate's note of today and I have reached the conclusion that this is a case in which permission to appeal should be granted, both in respect of the appeal against the costs order and in respect of the errors of law which are alleged about the way the disability discrimination claim was decided by the Employment Tribunal.

6.	As I am differing from Elias LJ said, I should first briefly refer to what he said and say why I am taking a different course from him.  In giving his reasons for refusal, Elias LJ wrote this:

"I see nothing wrong with the approach of the Employment Appeal Tribunal in its analysis of the Employment Tribunal's decision.  It recognised that the Employment Tribunal may have gone wrong in law in approaching the question whether the claimant was a disabled person on the basis of her limited mobility.  

The EAT recognised that had the Tribunal properly addressed that issue they might have found that she was. But they noted that the Tribunal went on to conclude that even if she were disabled in that way, the reasonable adjustments that she claimed ought to have been made in her favour, particularly in relation to aspects of finding alternative jobs and redundancy exercise, would not have had to be made because it was not reasonable that they should be.  

The EAT was not required to send the matter back to the Tribunal in circumstances where the outcome would have been inevitable, given that finding.  I do not for the moment see that any of the findings of the Tribunal would have been affected by that decision and that was plainly the view of the EAT.  In this context it must be noted that the Tribunal found in terms that the reason for dismissal had nothing to do with disability.
	
As to the question of costs, there was a careful analysis by the Employment Tribunal, and the EAT concluded that it was well within their discretion to award the respondent half its costs.  Like the EAT, I see no basis for interfering with that finding.  In particular, the fact that the Tribunal erred in its analysis of her disability, as the EAT found really had no bearing on the reasoning of the Employment Tribunal as to the appropriate level of costs."

 So refusal there for both the appeal against the way the disability discrimination claim had been decided and in refusing my leave to appeal against the costs order which the EAT would not interfere with.

7.	The position now is that these aspects of the matter are dealt with in greater detail in the skeleton argument prepared by Ms Gupta, and I am satisfied that, for the reasons given in her skeleton argument and her supplemental statement, there is a real prospect of this appeal succeeding both on the disability discrimination point and in relation to the costs order.  It may be that the tribunals below did not receive all the help that they would have benefited from in deciding both aspects of the case and have therefore erred in the way that they dealt with it.  It has been made clear by Ms Gupta that the costs appeal is a stand alone appeal; it is not contingent on the way that the disability discrimination point is decided.  So that there are two main grounds of appeal, and I gather from the supplemental statement that Ms Gupta will wish to have permission to amend the grounds of appeal to include further grounds relating to the ET taking into account an irrelevant consideration in connection with the costs jurisdiction. 

8.	So what I propose to do is to grant permission to appeal on the basis of the submissions in Ms Gupta's skeleton arguments and to grant permission to amend the grounds of appeal as sought in the note of today's date.  I should also record this, that I made it clear to Ms Gupta in the presence of her client, and they have had a chance to speak to one another since I made these remarks, that there should be no misunderstanding about the risks that are involved in pursuing an appeal in this court.

9.	I first of all made it clear that permission to appeal is no guarantee of success.  The appeal may fail.  Permission only means that the appeal will proceed to a hearing before three judges.  If it fails ‑‑ this is the second point ‑‑ Mrs Sud, who already has a costs order against her which she is wanting to appeal, may find that she has another costs order against her, because the normal rule in this court is that the costs follow the event, and that means that if her appeal fails then the likelihood is that the London Borough of Ealing will seek an order against her to pay their costs of the appeal in addition to the costs order that they have obtained in relation to the Employment Tribunal  hearings.

10.	So there is a considerable risk involved.  Ms Gupta has made these risks plain to Mrs Sud.  It is of course still open for Mrs Sud to decide not to proceed with the appeal on further reflection.  If she does proceed, I am given to understand by Ms Gupta that Mrs Sud will have the benefit of representation from the Bar Pro Bono Unit.  So the Court of Appeal would have the benefit of arguments being deployed, if I may say so with greater skill that they may have been deployed before Ms Gupta was involved.

11.	That is the order I make.  I would also add further directions as follows.  First, that the appeal should be before three Lord Justices and at least one of them should be a Lord Justice who has had experience of sitting in the Employment Appeal Tribunal.  I make that because the area of disability discrimination and the area as to costs does involve some practical experience of the way these things actually work.  That is particularly true in relation to costs.  Some practical experience of the tribunal system would be of assistance to the court. I also direct a time estimate of one day.

Order: Application granted