MRS J THORNHILL v LONDON CENTRAL BUS CO LTD [1999] UKEAT 463_99_2807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 463_99_2807Case No Appeal No. EAT/463/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J THORNHILLAPPELLANTLONDON CENTRAL BUS CO LTDRESPONDENT
Before
Mr Justice Charles Mrs D M Palmer Mr N D WillisDate 28 July 1999
[1]APPEARANCES For the Appellant MR D IBEKWE (Representative) MR JUSTICE CHARLES : This appeal comes before us by way of preliminary hearing. The parties are a Mrs Thornhill and the London Central Bus Co Ltd. Mrs Thornhill appeals against a decision of the Employment Tribunal which was sent to the parties on 3 February 1999. Our function today is to consider whether or not the appeal raises a reasonably arguable point of law.[2]The appeal is in two parts. The first part relates to a decision made by the Tribunal under the Disability Discrimination Act. The second relates to a decision under the Employment Rights Act as to the reason for the dismissal and its fairness.[3]As to the first point, two grounds of appeal are raised in a Notice of Appeal which has been put before us and which was drafted by a Union representative who is not legally qualified. He has also appeared before us today and has helpfully advanced the Appellant's case. I confess that I have not studied in great detail the grounds set out in that Notice of Appeal as to the Disability Discrimination Act. This was because it seemed to us on a preliminary reading that they did not identify the best point that was reasonably arguable so far as Mrs Thornhill was concerned.[4]As to that, it appeared to us to be reasonably arguable in law that the Tribunal erred in their application of paragraph 4 of Schedule 1 of the Disability Discrimination Act. The Tribunal based their decision on that paragraph. This can be seen from paragraph 37 of their Extended Reasons where they say this:
"We find that Diabetes amounts to a medical impairment. However we do not find that the Applicant's symptoms can be taken to affect her ability to carry out normal day to day activities since her symptoms did not fall into any of the exhaustive list of items at Schedule 1, 4(1) of the DDA. We do not conclude that she was incontinent, nor that any of the other potential items listed in that sub-paragraph were affected. Rather her condition was frequent micturation, rather than loss of control of urinary functions. ..."
Having regard to that it seems to us that it is reasonably arguable that the Tribunal have not correctly interpreted or applied paragraph 4.[5]The introductory words of paragraph 4 are in the following terms:
"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following - [and then there is a list] ..."
In the passage we have cited from the Extended Reasons the opening words of the third sentence are: "We do not conclude she was incontinent ---" and from that it seems to us to be reasonably arguable that the Tribunal have asked themselves whether or not Mrs Thornhill was incontinent rather than the correct statutory question, namely whether her impairment affects continence. We are of that view, notwithstanding the balance of that sentence where they say: " nor that any of the other potential items listed in that sub-paragraph were affected" .[6]That point being reasonably arguable we consider that this part of the appeal, namely the appeal against the finding under the Disability Discrimination Act should proceed.[7]In the circumstances of this case we do not propose to make any findings, or give any indications as to the other arguments put in the Notice of Appeal in respect of the Disability Discrimination Act. It will be a matter for those representing Mrs Thornhill, or for Mrs Thornhill, or for the Tribunal that hears the substantive appeal to deal with those matters. Nothing we say is to be taken as an indication that we think that any of them are reasonably arguable or as an indication that we think they are not reasonably arguable. In our judgment they are points of law which if they are pursued can be dealt with more appropriately by the Tribunal on the substantive appeal having regard to our acceptance that there is a reasonably arguable point of law which gives this Tribunal jurisdiction.[8]The second part of the appeal again, in our judgment, raises a reasonably arguable point, namely whether or not the Tribunal were correct to conclude that Mrs Thornhill was dismissed by reason of conduct rather than capability. This part of the appeal is also, to a large extent, based on the same factual background as the claim relating to the Disability Discrimination Act and in our judgment this part of the appeal should also be allowed to proceed.[9]We give this case Category B, and a time estimate of a day and we direct that skeleton arguments are to be lodged by both sides 14 days before the hearing.