MR W D HANLON v THE UNIVERSITY OF HUDDERSFIELD [1999] UKEAT 1235_99_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1235_99_2211Case No Appeal No. EAT/1235/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W D HANLONAPPELLANTTHE UNIVERSITY OF HUDDERSFIELDRESPONDENT
Before
Mr Justice Charles Miss C Holroyd Mr S M Springer
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR D WOLFE (of Counsel) Instructed By: Mr R Simms Messrs Beachcroft Wansbroughs Solicitors 7 Park Square East Leeds LS1 2LW MR JUSTICE CHARLES : We have before us an interlocutory appeal. The parties to the proceedings are a Mr Hanlon and the University of Huddersfield. The parties have been in litigation before, before the Employment Tribunal. A hearing that took place in Nottingham where factual assertions advanced by Mr Hanlon were rejected by the Nottingham Tribunal. The decision of the Nottingham Tribunal was the subject of an appeal to this Tribunal. That appeal was dismissed at the preliminary hearing stage. The judgment of this Tribunal is on 27 March 1998. In particular, the findings of the Nottingham Tribunal were(a) that Mr Hanlon's suspension on 6 December 1996 did not relate to his disability for the purpose of section 5 of the Disability Discrimination Act, and(b) Mr Hanlon's case that he had made clear his need for privacy, both at his original interview in 1990 and at a meeting on 6 December 1996, was rejected. Those are findings of fact after evidence was given which are now binding on the parties.[2]As we understand his submission Mr Hanlon maintains that those findings were based on assertion and supposition and cannot really be treated as findings but the position remains that findings they are.[3]The proceedings with which this appeal are concerned are proceedings issued after the proceedings heard in Nottingham and, as we understand it, (and we put this in general terms) they relate primarily to the period after Mr Hanlon's suspension and, in particular, to the time when he indicated that he was ready to return to work. An undisputed fact is that following his suspension in December 1996 Mr Hanlon never in fact did return to work at the University of Huddersfield.[4]It is common ground and an accepted fact that Mr Hanlon is a disabled person for the purposes of the Disability Discrimination Act. What is in dispute in these proceedings (and this is apparent when one reads what I understand to be the final particulars of Mr Hanlon's case contained in a long document dated 16 April and the Respondents' statement of case) is the level of his disability and thus the adjustments that should be put in place pursuant to the duty under section 6 of the Act.[5]A stark matter of dispute is in connection with the employer's request of Mr Hanlon when the indication came that he was ready to return to work to submit himself to a medical examination. There is a dispute between the parties, not that that request was made but as to why that medical examination did not take place and whether or not the request was a reasonable one. Given that dispute as to the level of disability, unless and until that level is decided or agreed, it is difficult to see how adjustments could be put in place having regard to the level of Mr Hanlon's disability. As we understand Mr Hanlon's case it is that, notwithstanding that he was asserting that the level of his disability had increased after December 1996, the breach of duty he asserts is that the Respondent employers failed to put in place what he says were the adjustments that had existed during the period of 1990 to 1996.[6]I have given this preamble to this judgment because at the heart of matters in dispute between the parties is Mr Hanlon's repeated request for particulars of the Respondents' case under sections 5 and 6 of the Act. The problem we have with Mr Hanlon's requests is that the Tribunal themselves have focused on that issue and, for example, at page 57 of the bundle before us and in the directions given on 25 March 1999, identify the difficulty that the Respondents have in providing detailed particulars because a preliminary stage so far as their case is concerned (albeit that this is disputed by Mr Hanlon) is that they could not make proper decisions as to the level of adjustments until they knew the level of disability. It is apparent when one looks at the correspondence, that the Chairman of the Tribunal has decided that the case should proceed without the particulars requested by Mr Hanlon being provided. This appears, for example, from the lack of reference to such particulars in the directions hearing in July 1999 and the responses given by the Chairman to Mr Hanlon's often lengthy letters which contain a request for particulars. In refusing particulars in the context and circumstances of this case we cannot see that the Chairman has erred in any way in law. The decision is inherently a matter well within the discretion and jurisdiction of the Employment Tribunal in deciding how this case can best be managed.[7]We have made (I imagine through Mr Hanlon's eyes) unsuccessful attempts to try to understand the detail of his case. By setting out this background, I am trying to set out where we have got to and why we do not see the need for the particulars he has requested.[8]I return now to the Notice of Appeal. The Notice of Appeal is against what is said to be a refusal of the Manchester Employment Tribunal on 6 November 1999. As we understand the position that is a reference to a letter written on behalf of the Chairman of that Tribunal dated 5 November 1999, which is the culmination, or nearly the culmination, of quite a lot of correspondence dealing with procedural matters relating to these proceedings. The first head of appeal is against the refusal by the Chairman of the Employment Tribunal to adjourn the final hearing. It is clear that in the letter date 5 November the Chairman refused to adjourn or postpone the substantive hearing. It seems to us that there is no error of law by the Chairman in refusing that. It is something well within the ambit of her discretion and her decision is well within the range of decisions open to her. Indeed, we would go further and say that her decision was plainly correct.[9]The second and third heads in the Notice of Appeal are that it is said that in the letter of 5 November the Tribunal has failed to:
"Enforce the tribunal Directions whereby the University of Huddersfield is required to disclose their full list of documents related to my complaint Enforce the tribunal Directions whereby the University of Huddersfield is required to disclose to me with my complete personal/personnel record which include my two contracts of employment; all the medical information on me; copies of the disability and disability adjustment assessment reports; details of the disciplinary matter; etc."
[10]We have been referred to the correspondence in this regard. On being informed that the University of Huddersfield had not complied with their duties, as to disclosure flowing from the Directions Hearing, the Chairman of the Tribunal wrote to the Solicitors acting for the University of Huddersfield whose response was that they had complied. The Chairman's response in the light of that was that any matters relating to failure to comply could be dealt with at the first day of the hearing. That is a response which places risk on the University of Huddersfield. If it were to be found on that occasion that, contrary to the assertion of their Solicitors, Mr Hanlon is correct and they have not provided relevant documents and those documents cannot be provided fairly and justly during the course of the hearing, the University of Huddersfield would be at risk of being held responsible for any adjournment so precipitated. Again, we can see no error of law in that approach. Indeed, again, we would say that the Chairman of the Tribunal was adopting a sensible and correct procedure, particularly having regard to the fact that there are counter-assertions by the University of Huddersfield that Mr Hanlon has not complied with a number of the obligations imposed upon him as to Discovery and the Chairman has written to Mr Hanlon in fairly trenchant terms warning him of the risk he is under if he continues not to comply with his obligations.[11]The fourth head of appeal is against an alleged refusal to require the University of Huddersfield:
"To provide for me their justification defence under s5(1)(b) and s5(2)(b) on which they intend to rely at the forthcoming substantive hearing."
That is not dealt with specifically in the letter of 5 November, as we read it, save possibly as a repetition of the earlier conclusion reached in the correspondence following the earlier Directions Hearing that such particulars were not necessary on the facts of this case, having regard in particular to the dispute relating to the request that Mr Hanlon attend for medical examination or be medically examined by a doctor appointed by the University of Huddersfield. As we have said, we can see no error of law by the Chairman in her approach to that issue and again, it seems to us, given the difficulties in this case that her approach is a sensible and correct one.[12]The fifth head of appeal is a refusal to grant leave to Mr Hanlon to serve a third DDA Questionnaire. The Respondents are confused by this. We confess that we are too. We are unclear as to when the request was made and when the refusal is said to have been made by the Tribunal. We find it difficult to see why a third questionnaire is necessary, given the particularisation over some 20 pages by Mr Hanlon of his case, the Respondents' statement of case and the various Directions Hearings. Again, therefore, we can see no error of law.[13]The sixth ground is that it is asserted by Mr Hanlon that the Employment Tribunal:
"Refusal to put in place the formally requested disability adjustments for me at the substantive hearing to ensure that I will not be disadvantaged by the psychological PTSD of my disability."
As to that, what the Chairman said in response in her letter of 5 November was:
"With regard to formal confirmation concerning adjustments for the hearing, Miss Donnelly [the Chairman] has asked me to confirm that your request for such adjustments have always been met by her in the past in so far as they are consonant with the role of the Tribunal as a judicial body and there is not the slightest need for you to require formal confirmation of this."
We wholeheartedly agree that there was never the slightest need for Mr Hanlon to require formal confirmation of this point.[14]The seventh head of appeal and the last one was against:
"The tribunal's formal decision to set aside in my particular case the agreed, accepted and established facts of the University of Huddersfield's s6 duty to me under the DDA 1995; to breach the requirements of the DDA Code of Practice 3.2; to ignore the DDA Guidelines detailing the requirement to address the effects to the individual disabled person concerned; and to breach the EAT guidelines ( Morse v Wiltshire County Council 1998)."
Counsel for the Respondents, in our view somewhat generously, has made submissions that this allegation might be based on a misunderstanding by Mr Hanlon of the stance of the Tribunal, namely that he has misunderstood some of the correspondence to have the effect that a matter in dispute is whether or not he is a person who suffered at all relevant times from a disability under the Act. That is not in dispute as is apparent, for example, from the Respondents' statement of case. What is hotly in dispute is the level of that disability. It is therefore the case that the Tribunal has not set aside agreed, accepted or established facts and again, in respect of this head of appeal we can discern no error of law made by the Employment Tribunal.[15]It follows that, being generous to Mr Hanlon in accepting that there were actually decisions of the Tribunal which could found an appeal over and above the refusal to grant an adjournment, we can see no error of law in the approach adopted by the Employment Tribunal as to the procedural steps to be taken before the substantive hearing takes place. We therefore dismiss his appeal.[16]Before us the University of Huddersfield, the Respondents, in addition to inviting us to dismiss the appeal have also invited us to adjourn the substantive hearing before the Employment Tribunal. They have not, as we understand it, asked the Chairman her views as to whether or not this discretion, which is one which lies with the Chairman, should be surrendered to us. Indeed, as we understand it, Miss Donnelly (the Chairman) has not been asked that question.[17]Given the way in which the Chairman of this Tribunal has conducted the correspondence and thus the procedure relating to this application and, in particular, her specific warnings to Mr Hanlon as to the risks he runs if he does not comply with the directions of the Tribunal, both as to the production of documents and the request (rather than a direction) of the Tribunal that he should submit himself to a medical examination, it seems to us that it would be wrong for us to take upon ourselves the discretion vested in the Employment Tribunal as to the procedural conduct of this appeal. We are mindful that in not acceding to the invitation of the Respondents this may impose upon those who act for them burdens as to the preparation of this case which might turn out to be wasted. However, that could possibly be alleviated as we understand that there is to be a short Directions Hearing either next Wednesday or the Wednesday after, potentially followed by a longer Directions Hearing. Any point that the Respondents, with the agreement of Mr Hanlon or otherwise, wish to raise as to adjournment of the substantive hearing should be dealt with by the Chairman at those times, or at any subsequent hearing whether it be set down for determination of the substantive dispute or for the hearing of procedural matters such as the Respondents' application to strike out the claim or for "unless" orders or the consideration of procedure effectively initiated by the Chairman of the Tribunal to seek to ensure that Mr Hanlon obeys order for directions.[18]Additionally, it would be that at such a hearing that Mr Hanlon could make applications for further procedural matters to be dealt with before the substantive hearing takes place.[19]We imagine that Mr Hanlon will not feel satisfied with this judgment. We would however urge him to reflect upon both the course of this hearing and this judgment and, in particular, upon the reaction of this Tribunal to his assertion that there is a need for particulars of the justification defence before these proceedings can be fairly and fully dealt with before the Employment Tribunal. We have attempted to deal with that. However, we repeat two things. First, the Nottingham hearing has taken place and findings of fact have been made by the Employment Tribunal that are binding upon the parties to this case; Mr Hanlon needs to remember that. Secondly, we repeat the point that it seems to us that a central issue in this case is going to be the reasonableness of the request made by the employers for a medical examination and the reasonableness of Mr Hanlon's reaction to that immediately and over the medium to long term. Given that, we find it difficult to see why it is necessary for there to be particulars under section 5 relating to the section 6 duty and, indeed, when we asked Mr Hanlon to identify the sort of material he was expecting to see in those particulars he was unable to provide any detail. The reality of it is, absent particulars, if Mr Hanlon wins at the earlier stages of this litigation, the absence of particulars is more likely to help him than to hinder him.[20]For the reasons we have given we dismiss this appeal. Costs[21]There is an application for costs in respect of this appeal. Our power to award costs is in Rule 34. Before we can award costs we have to be satisfied that it appears to us that proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.[22]Mr Hanlon repeats a submission he made to us during the course of the day, that he had understood there was a breach of the statutory duty and was bringing a point of law to this Tribunal relating to sections 5 and 6. Having due regard to that we are nonetheless of the view that he has brought this appeal unreasonably primarily for two reasons. Firstly, the correspondence with which Mr Hanlon is plainly very familiar shows that these issues relating to sections 5 and 6 were being dealt with by the Employment Tribunal and that the steps that were being taken were to ensure that there was a fair and full hearing. Second, when asked what he was expecting to receive by way of particulars of the justification defence, Mr Hanlon was really unable to give any description and thus and description of what he thought he required to enable him to conduct his case fairly. Further in discussion with Mr Hanlon, it was apparent to us that he was aware that a central issue was going to revolve around the request made by the employers for medical examination.[23]We have also taken into account that, in our judgment, the allegation relating to the refusal of the Employment Tribunal itself to put into effect adjustments and the assertion was a wholly unreasonable one for Mr Hanlon to include and is not one, so far as we can see, that would be motivated by the point of law he says he wished to have decided by this Tribunal and thus the point of law upon which he said the Employment Tribunal had erred.[24]Accordingly, in our judgment, we should make an order that Mr Hanlon do pay the Respondents' costs of this appeal and we will estimate those costs at £500.