Appeal No. UKEAT/0111/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 June 2006

Before
MR RECORDER LUBA QC
MRS M McARTHUR FCIPD
MR D NORMAN

MR P A THOMPSON	APPELLANT

BRITISH GAS SERVICES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr DAVID MASSARELLA
(of Counsel)
Instructed by:
Disability Rights Commission
2nd Floor
Arndale House
The Arndale Centre
Manchester
M4 3AQ	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY

Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
  
Disability Discrimination Act 1995 claim, and unfair dismissal.  Appeal on grounds that reasons fail to meet Meek threshold and rule 30(6) of Employment Tribunal Rules amply made out.

MR RECORDER LUBA QC

Introduction

1.	This is an employee’s appeal against the dismissal by an Employment Tribunal (ET) of claims of disability discrimination by an employer and unfair dismissal by that employer.  The Appellant, the Claimant before the ET, was employed by the Respondent from December 2001 as a trainee gas engineer.  In February 2003 he was certified incapable of work by his general practitioner, as a result of an inguinal hernia.  He did not return to work before being dismissed by the Respondent employers at the end of October 2004.  

2.	Following a hearing on 13 and 14 June, and 7 November 2005, the ET dismissed his claim of disability discrimination on the basis either (1) that he had not established that he had met the statutory definition of “disabled person” or alternatively (2) that if he had, he had not shown that the Respondent had failed to make reasonable adjustments to accommodate his disability, or that they had discriminated against him.  The Tribunal’s rejection of his claim for unfair dismissal was based on an acceptance of the Respondent’s case that the Appellant had been dismissed on capability grounds and the Tribunal’s positive finding that dismissal, in the particular circumstances, was within the range of reasonable responses that an employer might make in that situation.  

3.	By Notice of Appeal, the Appellant contends in opening summary that:
“The Tribunal has fundamentally failed to discharge its judicial obligation to make findings of fact, to set out and determine the relevant legal and factual issues and to provide adequate reasons. In almost every instance where it has made determinations, they are vitiated by errors of law.”  

We are referring there to the terms of paragraph 3 of the Grounds of Appeal.  Having set out that general criticism, the Grounds of Appeal then particularise four specific grounds and they are, respectively that:

(1)	the Tribunal failed entirely to provide adequate written reasons in its decision;

(2)	the Tribunal mis-applied the law in determining that the Claimant was not a disabled person within the meaning of the Disability Discrimination Act;

(3)	the Tribunal mis-applied the law in its findings that the Respondent did not discriminate against the Claimant contrary to the Disability Discrimination Act; and

(4)	The Tribunal erred in law in deciding that the Claimant had not been unfairly dismissed.

4.	The Respondent’s initial reaction to the Notice of Appeal was to express resistance to the appeal, based on the ET’s reasons and upon reliance on “such further amplification of the Employment Tribunal reasons as is provided.”  We are there referring to paragraph 3 of the Respondent’s Answer.  

5.	The Respondent further (in a letter dated 22 February 2006 addressed to this Appeal Tribunal) urged that there was “every reason for concluding that they [the Employment Tribunal] had good even if unexpressed reasons for reaching the conclusions that they did.”  We would add emphasis to the three words “even if unexpressed”.  In those circumstances, and given that Answer and letter, the Respondent then made an express application to the Employment Appeal Tribunal (EAT) for a direction that it administer a question to the ET to be answered in the following terms:
“Having regard to the Notice of Appeal, and in relation to the claims made under the DDA and of unfair dismissal, what were the issues which the Tribunal considered were relevant to the claim, were [there] any issues [which] were not determined, and if so, which ones and why, what findings of fact were relevant to the issues which were determined, what was the self-direction of the relevant law, and how were the relevant findings of fact and the applicable law applied in order to determine those issues?”

The Respondent, in that passage taken from the letter of 22 February 2006, was recognising that the thrust of the grounds of appeal was a wholesale inadequacy on the part of the Tribunal to address the obligation to give reasons, whether that obligation be understood as developed in the case law, or as currently formulated in the relevant rules.  

6.	The application just mentioned was opposed by letter from the Appellant’s representatives, the Disability Rights Commission, on the basis that an invitation to amplify the reasons could only be met by a complete re-write of the decision.  We there refer to their letter of 27 February 2006.

7.	The request for remission for further reasons to be provided by the Tribunal was refused by the President of the EAT, Elias J, on 5 April 2006.  Another Judge of the EAT, Langstaff J, had earlier taken into consideration the possibility of directing an amplification of the Tribunal’s reasons, but had instead directed that this appeal go through for a full hearing on the merits.  In the light of those directions and orders, the Respondent, by letter dated 21 April 2006, indicated that they were withdrawing their opposition to the appeal.  They did not attend before us, and are not represented.  Before withdrawing from the appeal, however, or withdrawing their opposition to the appeal, the Respondent did accede to the Appellant’s request to agree a schedule of evidence, or rather to indicate which parts of a proposed schedule of evidence were accepted.

The Appeal

8.	  By his helpful skeleton argument, Mr Massarella, for the Appellant, suggests that this is an appropriate case for this Appeal Tribunal to give more general guidance on the construction and scope of rule 30(6) of the Tribunal Rules to which we will refer to more fully in a moment.  That new sub-rule, he submits, imposes a mandatory obligation on a Tribunal to comply with the formulation it contains, when setting out reasons for its decision.  He submits that the requirements of the sub-rule go further than the familiar judicial authorities and, in particular, the test in Meek and that, in so far as this Appeal Tribunal has previously considered the true extent of rule 30(6), it has thus far failed to directly address the question of the true nature and extent of that sub-rule.  Mr Massarella submits, in his helpful and succinct oral submissions, that the construction of rule 30(6) is a question which has “slipped under the radar” and could usefully be addressed.  

9.	The provisions of the relevant rule must now be referred-to.  The rule is contained in the first schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  Schedule 1 contains a series of procedural rules and, under the heading Orders, Judgments and Reasons, the following appears at rule 30(1): 
“30.—(1)    A tribunal or chairman must give reasons (either oral or written) for any—
(a)   judgment; or 
(b)   order, if a request for reasons is made before or at the hearing at which the order is made.” 

10.	As Mr Massarella reminded us, the obligations obtained in rule 30(1) reflect in any event, the previous obligations on tribunals to give reasons as they were in force before these new rules.  What he submits is “new” is the specific provision in sub-rule (6) which provides as follows:
“(6)	Written reasons for a judgment shall include the following information—
 (a)	the issues which the tribunal or chairman has identified as being relevant to the claim;
(b)	if some identified issues were not determined, what those issues were and why they were not determined;
(c)	findings of fact relevant to the issues which have been determined;
(d)	a concise statement of the applicable law;
(e)	how the relevant findings of fact and applicable law have been applied in order to determine the issues; and
(f)	where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated.”

11.	Mr Massarella reminded us that in the decision of this Tribunal in Roeser v Commerzbank AG (a decision of HHJ Burke sitting alone, handed down on 24 November 2005) the EAT had determined that the requirements of that rule do not strictly apply to interlocutory or case management decisions of the ET, but only apply to full decisions, i.e. Judgments and substantive orders. 

12.	Mr Massarella, having taken us to the statutory provisions in the new rule 30 and its sub-rules, then invited us to use the present appeal as an appropriate vehicle to give general guidance.  In particular, he invited us to address the issue of the extent to which the use of the words “shall include” in rule 30(6) imposed an absolute mandatory requirement on an ET as opposed to a requirement which might be “directory”.  He invited us, in particular, to depart from what appeared to be the obiter expression of opinion by this EAT in Commotion v Ms K Rutty [2006] IRLR 171 that the sub-rule was not mandatory or, shall we say, absolutely mandatory in its application.  

13.	We are not satisfied that the present appeal provides an appropriate vehicle for a detailed consideration of the construction of rule 30(6) or of the extent and meaning of the words “shall include”.  The unreported authorities of the EAT, put in by Massarella this morning, that would assist in that task are not decisions which have been referred to in his Skeleton Argument.  Furthermore, no express notice has been given to the Respondent that the opportunity would be taken to use this appeal as a vehicle for the giving of judicial directions, such as those that Mr Massarella invites us to give, as to the construction and import of the relevant provision.  This is an unopposed appeal and, in our judgment, in the absence perhaps of the assistance of an amicus, does not provide an appropriate vehicle for the determination of issues of such general importance and effect.  We shall therefore confine ourselves to the contentions advanced in this case by the Appellant and which relates exclusively to instant appeal.  

The “Reasons” challenge

14.	As will become clear, we do not believe it necessary to go further into this appeal than to deal with Ground One, that is to say, the sufficiency of the Tribunal’s reasons.  Although we have not set out the detailed terms in which Ground One is advanced by the Appellant, it is sufficient to categorise it or describe it in the way mentioned by HHJ Clark in the Coors Brewers Ltd v Mr S P Adcock & Others (a decision handed down on 30 March 2006).  At paragraph 3(2) of that Judgment, HHJ Clark identified the question falling for determination as: 

“has this Tribunal complied with its obligation, now enshrined in rule 30(6) of Employment Tribunals Rules and Procedure 2004, to give adequate reasons for its Judgment - that is, reasons which are Meek-compliant to borrow that expression coined by Sedley LJ in Tran v Greenwich Vietnam Community Project [2002] IRLR 735 - by reference to the leading case of Meek v City of Birmingham District Council [1987] IRLR 250.”

 That seem, to us, to be an appropriate descriptor of the nature of Ground One in the instant appeal, and indeed, Mr Massarella has urged Meek upon us, and has this morning furthermore put in Tran in embellishment, or enlargement, of the Appellant’s argument.  

15.	We are satisfied that his is a plain case of failure to comply with both the familiar Meek requirements and the current codification contained in rule 30(6).  As we shall be remitting the substantive claims for complete re-hearing by a freshly constituted ET, and as we have no wish to influence (in any way) the outcome on the substantive merits by anything we may say in this Judgment, it is only necessary for us to state our reasons shortly.  We can conveniently do so by taking each of the main requirements of rule 30(6) in turn.  

Rule 30(6)(a): Identification of the relevant issues

16.	First, has the Tribunal identified the issues relevant to the claim?  The ET certainly set out that the claims before them were claims of disability discrimination and unfair dismissal.  Beyond that, in our judgment, they wholly fail to identify the discrete issues.  For example, nowhere in their Judgment does it emerge that the Respondent had conceded that important limbs of the statutory definition of “disability” were satisfied.  Nor do they identify what issues remained for determination on the statutory definition of “disabled person”.  There is no identification, by list or otherwise, of the “reasonable adjustments” that the present Appellant had urged that the Respondent ought to have made.  There is no indication by list or otherwise of what specific issues the present Appellant had raised for determination on unfair dismissal, for example, complaints of procedural unfairness, inappropriate procedures, the absence of a ‘business need’ to dismiss, etc.  If this Tribunal had set out the specific issues for determination between the parties, they might have been in a proper position to discharge their duty to give reasons for their decisions on those issues.  

Rule 30(6)(b): Issues not determined

17.	The identification of issues not determined, stating what those issues were and why they were not determined, is the task set-out in rule 30(6)(b).  The Tribunal certainly record that a claim for unpaid wages made by the Claimant and was not pursued before them, but their Judgment does not set out why numerous issues raised by the Appellant, in further and better particulars of his claim to the Tribunal and in his written submissions, and/or in his oral submissions, and in his evidence, were not determined.  The ET do say, at paragraph 32 of their Judgment:

“32.	We are conscious that in writing this judgment we have not recited every piece of evidence which we have heard and read.  The purpose of this document is to record the facts which are relevant to the issues in dispute and to apply the law to those facts, giving our reasons for our findings.  This we believe we have done.”

18.	The Tribunal are certainly correct to direct themselves that they do not need to recite “every piece of evidence” which has been deployed before them, but what they are required to do, is to address themselves to the relevant issues in play, or indicate why their Judgment does not address those issues.  It seems to us that this is a plain case of failure to comply with the requirement set out in rule 30(6)(b).  

Rule 30(6)(c): Findings of fact on the relevant issues

19.	The ET, in our judgment, have wholly failed to give any narrative or description of the main events or dates relating to the issues on this claim.  There is no mention, at all, of obviously relevant facts.  For example: the identity of the persons who were involved in the events, their roles in the relevant history, and the identity of those who gave evidence.  These are not set out in the Reserved Judgment.  Nor is there any adequate reference to the content of the medical evidence which was before the Tribunal and the findings upon it.  

20.	In respect of the unfair dismissal claim, the ET does not make findings of fact as to the procedures followed.  It does not make any finding on the issues which the Appellant alleged were instances of inadequacy or unfairness in those procedures.  In so far as it finds the employer’s actions and responses were “reasonable”, it gives no detailed account of what they were.  In respect of disability discrimination, it does not make findings of fact as to the Appellant’s condition, its effects upon him, or in relation to its duration, which would be essential before the application of the statutory definition of “disability”.  It makes hardly any reference to the documents which were before it, extending to some 390 pages, or to the oral evidence which it took over two full Tribunal days.

21.	On a central issue of what the Appellant could or could not do, having regard to what he asserted was his disabling condition, the decision simply records what the Appellant “claimed” and what the expert witness “stated” but makes no findings of fact.  Again, we consider this a plain instance of non-compliance with the requirement of 30(6)(c), that is, to make relevant findings of fact.

Rule 30(6)(d): Statement of applicable law

22.	It is quite impossible to suggest that the ET has got anywhere near to meeting this requirement in the instant case.  Although the Disability Discrimination Act 1995 is referred to by name, none of the relevant provisions are outlined or summarised by the Tribunal.  In particular, there is no mention of the statutory definition of “disabled person” in section 1, or of the component parts of that definition that are amplified in schedule 1.  There is no reference to the statutory or other guidance that is published to assist on the meaning of “disability”.  There is no reference to any authority on those issues.  Likewise, there is no reference at all to those parts of the Disability Discrimination Act that deal with discrimination by employers and the question of ‘reasonable adjustments’. 

23.	In relation to unfair dismissal, there is a reference, in passing, to section 98(2) of the Employment Rights Act but in relation to that statute, of everyday importance to an ET, this Tribunal even ascribes to it the wrong year.  It is an Act of 1996, not 1998, as the Tribunal indicate.  This absence of reference to any detailed statutory material, or to any authority, wholly fails to comply, in our judgment, with the requirements of the sub rule.  This is not to say that every Tribunal is required to set out, verbatim, all of the relevant statutory provisions, or all of the propositions to be derived from relevant authorities.  It is simply sufficient to refer to or distil those provisions, but there is nothing that meets even that requirement in the Judgment of this Tribunal.

Rule 30(6)(e): Applying the law to the facts to reach a decision 
	
24.	Having failed so manifestly to grapple with the requirements of rule 30(6)(a) to (d), the Tribunal were faced with an impossible task in stating their relevant findings of fact and applicable law as applied when determining the issues before them.  We accept the submission made for the Appellant, that by their own inadequate reasoning the Tribunal had disabled themselves from dealing with this fifth requirement of rule 30(6).  

Disposal

25.	Mr Massarella invites us, in his skeleton argument and in his oral submissions, to go further in respect of one part of the case than simply remitting the matter to the ET.  That specific point relates to the question of whether the Appellant is, or is not, a “disabled person” for the purposes of section 1 and schedule 1 of the Disability Discrimination Act 1995.  Mr Massarella reminds us that the definition involves addressing four discrete questions or component parts, that is to say, firstly, whether there is an impairment, secondly, whether it is long-term, thirdly, whether it impacts upon day-to-day activities, and fourthly, whether that impact is substantial.  We accept that that is the appropriate approach to that question.  

26.	Mr Massarella reminds us that the Respondent to the instant appeal concedes that before the Tribunal, they did not dispute that the first two requirements, (i.e. as to impairment and as to long term duration) were made out.  That makes it all the more surprising that one might otherwise infer from the Tribunal’s actual Judgment that the second condition, long-term effect, was not fulfilled.  What Mr Massarella urges is that those first two matters having gone by way of concession, the remaining two were plainly answered on the facts of the case.  

27. 	As to impact on ‘day-to-day activities’, he reminds us that, within the definition of day-to-day activities contained in paragraph 4 of the first schedule to the 1995 Act, there are set out the matters of “ability to lift” and “mobility”.  Mr Massarella draws our attention to the fact that in agreeing the schedule of evidence, the Respondent has acknowledged that there was some impact on the questions of mobility and lifting in this case, and he invites us to say that given that there was no cross-examination of the Appellant on these points, there is an inevitable conclusion that there was an impact on day-to-day activities in relation to those two matters, that is to say, mobility and lifting.

28.	On the question of whether the effect is ‘substantial’, his approach is somewhat more elliptical, although by that we do not mean to suggest any criticism of his argument.  He has invited us to look at the Claimant’s witness statement, which we have done, and to the fact that he does not appear to have been pursued in cross-examination on the extent to which the disabling condition impacted on his everyday activities.  He has invited us to look at the medical evidence, which was only available from one medical expert, and to say that that evidence, taken together with the Claimant’s evidence, must inevitably meet what he describes as the “low hurdle” in relation to the proper test of ‘substantial’, that is to say, that it only need be something more than trivial.  

29.	When probed, Mr Massarella sensibly accepted that his submissions did involve the proposition that a ‘substantial’ impact in this case would be made out only if this Tribunal were to accept the Claimant’s evidence. However, if we were to conclude the issue of “substantial” in the Appellant’s favour, it would be to determine an issue which was plainly an issue for the Tribunal below, i.e. whether the Appellant’s own evidence was to be accepted or whether it was, having regard to other matters, not to be accepted or was not fully credible.  Mr Massarella suggests that, on this part of the statutory definition of disability, there is only one conclusion and any other conclusion would fly in the face of the evidence.  As he readily recognises, we are not a Tribunal of fact.  The weighing of evidence is a matter for the ET.  We are not satisfied that it is appropriate ourselves to reach any conclusion on the question of “disabled person”, or to hold that there could only be one answer to that question on the evidence that might be deployed at any future Tribunal.  In those circumstances, we decline Mr Massarella’s invitation to determine that issue.  

30.	What then, is the appropriate course for the disposal of this appeal?  Plainly, it is right that the matter must go back to an ET.  The question is whether it should be remitted to the same Tribunal or to a differently constituted Tribunal.  On that question, Mr Massarella has reminded us of the helpful guidance in Sinclair, Roche & Temperley v Heard [2004] IRLR 763. In his Judgment in that case, on behalf of the Tribunal, the then President identified at paragraphs 46.4 and 46.5 factors which would be indicative of the class of case which ought not to be remitted to the same Tribunal.  He said:

 “46.4	It would not ordinarily be appropriate to send the matter back to a tribunal where, in the conclusion of the appellate tribunal, the first hearing was wholly flawed or there has been a complete mishandling of it.  This of course may come about without any personal blame on the part of the tribunal.  There could be complexities which have not been appreciated, authorities which had been overlooked or the adoption erroneously of an incorrect approach.  The appellate tribunal must have confidence that, with guidance, the tribunal can get it right second time.” 

31.	It is not necessary to set out the further text of paragraph 46.5 of the President’s Judgment.  Suffice to say that in the light of our findings, as to the wholesale extent to which there has been a failure to comply with the obligation to give reasons as originally formulated in Meek or as now stated in rule 30(6), we do not consider this an appropriate case for remission to the same Tribunal.  

32.	In the circumstances, therefore, our order is that the appeal be allowed, and that the claims for disability discrimination and unfair dismissal will be remitted to a freshly constituted ET.