MR A MCKENZIE v EAST SUSSEX COUNTY COUNCIL [1999] UKEAT 1334_98_1312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1334_98_1312Case No Appeal No. EAT/1334/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MCKENZIEAPPELLANTEAST SUSSEX COUNTY COUNCILRESPONDENT
Before
His Honour Judge Peter Clark Mr D Chadwick Mr S M SpringerDate 13 December 1999
[1]APPEARANCES For the Appellant MISS C D'SOUZA (of Counsel) Instructed by: Ms P Droop Messrs Evill & Coleman Solicitors 113 Upper Richmond Road Putney London SW15 2TL For the Respondents MR R PERSHAD (of Counsel) Instructed by: Ms R Lyons Solicitor East Sussex County Council Pelham House St Andrew's Lane Lewes East Sussex BN7 1UN JUDGE PETER CLARK : This appeal came before a division of the EAT on which I sat for ex parte preliminary hearing on 3rd March 1999. I refer to the judgment which I gave on behalf of the Appeal Tribunal on that occasion for the background and the reasons for allowing the matter to proceed to a full hearing. Initially, the respondent Council lodged an Answer dated 28th April 1999 indicating an intention to resist the appeal.[2]Since the preliminary hearing solicitors have been instructed on behalf of the appellant. On 30th November 1999 those solicitors, Messrs Evill & Coleman, sent a form of Consent Order, signed by both parties, to the EAT. The order proposed was in the following terms:
"It is agreed between the parties that:- 1. The matter be referred back to an Employment Tribunal in relation to the issue of whether the Appellant suffers from a disability as defined by the Disability Act and if so whether the Appellant was unfavourably treated as alleged in his application dated 27.7.98. 2. No order as to costs."
[3]The effect of that order is to allow the appeal and remit the appellant's claim of disability discrimination to, we think, a fresh Employment Tribunal for rehearing. It is not our practice to allow appeals by consent without our being satisfied that there is a good reason for making the order sought. See Practice Direction 13(4) and J Sainsbury plc v Moger [1994] ICR 800 . Accordingly the full hearing having been listed before us today Counsel have appeared before us on behalf both parities.[4]It has been explained that the basis for the parties' agreement that this appeal should be allowed and the matter remitted for rehearing on the question of whether the appellant was disabled within the meaning of s.1 of the Act and thereafter if it be found that he was for the tribunal to go on to deal with the merits of the complaint is as follows.[5]The respondent acknowledges that the original tribunal decision was reached before, and therefore did not follow the guidance in, the decision of this tribunal in Goodwin v The Patent Office [1999] IRLR 4 , Morison J presiding. A point which we noted at paragraph 2G of the preliminary hearing judgment.[6]Further, the respondent accepts that the Chairman's Notes of Evidence contradict the tribunal's finding of fact, in paragraph 3 of their extended reasons, that the appellant confirmed in evidence that his condition was "self-remitting". In fact his evidence was that he did not consider himself disabled when on medication, but did so when he was not. That raises a question under paragraph 6 of Schedule 1 to the Act. See the preliminary hearing judgment, page 4A-C.[7]In these circumstances we accept that this appeal should be allowed and approve the terms of the consent order as drafted and agreed between the parties. There are insufficient findings of fact for this tribunal to substitute a finding that the appellant was disabled and that is the only issue that was determined by the Employment Tribunal on the last occasion.[8]Accordingly, the matter is remitted to fresh Employment Tribunal. A copy of this judgment and the preliminary hearing judgment should be provided to the new Employment Tribunal.