MS W HARDWICK v (1) SOUTHAMPTON UNIVERSITY HOSPITALS NHS TRUST (2) MR I BOYD [2000] UKEAT 556_00_2310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 556_00_2310Case No Appeal No. EAT/556/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS W HARDWICKAPPELLANT(1) SOUTHAMPTON UNIVERSITY HOSPITALS NHS TRUST (2) MR I BOYDRESPONDENT
Before
His Honour Judge J R ReidDate 23 October 2000
[1]APPEARANCES For the Appellant MR A GEORGE (of Counsel) Appearing under the ELAAS scheme JUDGE REID QC : This is an ex parte preliminary hearing on a appeal by Ms Hardwick against the decision of an Employment Tribunal sitting at Southampton which following a two days of hearing decided on 15th March 2000 that the applicant was not a disabled person within the meaning of the Disability Discrimination Act 1995 and adjourned further hearing on the issues of race discrimination and unfair dismissal. There is a wide-ranging Notice of Appeal but on the hearing before us Mr George, instructed through the ELAAS scheme on behalf of Ms Hardwick, has limited himself to what he describes as three particular issues, namely two which he describes as 'procedural perversity' and 'general perversity' and the third on a decision of the tribunal not to admit to further evidence which Ms Hardwick wished to adduce after the close of evidence on second day of hearing, 10th March, when she sought to introduce a medical report from a doctor whom she had seen between the day of the first hearing, 15th February, and the day of second hearing, 10th March.[2]The essence of the complaint, so far as the procedural perversity point is concerned, is that the tribunal when confronted with a litigant in person failed to ask her questions about matters which were clearly troubling the tribunal and which were referred to in respectively paragraphs 12 and 13 of the extended reasons. In paragraph 12 the decision said:
"12 … her evidence was that she had difficulty in climbing stairs, pain in her back and hip, inability to stand for long periods of time and the need to get up and "stretch her legs" if she had been sitting for any considerable length of time. She gave no evidence to the frequency in which these problems are encountered or of their severity. …"
Then in paragraph 13 the decision reads:
"13… In relation to her ability to carry and otherwise move everyday objects, the applicant gave no examples of the sort of problems that she experiences, other than saying that she found it difficult to lift piles of files in the office. We found this an imprecise explanation without any indications to the weight or other dimensions of the "piles of files" or the frequency with which she was expected to undertake this task. Such a pile might consist of no more than 2 or 3 slim folders. Which would not ordinarily present any difficulty. At the other end of the scale, a pile might consist of a substantial number of bulky folders which no-one would reasonably be expected to lift and carry at one go. …"
[3]It is said that there were two areas where the tribunal was taking a view adverse to the applicant as emerged from their balancing exercise at paragraph 15 of the reasons, without have explored with her the detail of the matters which they said was unexplained. Counsel pointed out to us that by Regulation 9 of the Rules of Procedure set out in Schedule 1 to the Employment Tribunals (Constitution etc.) Regulations 1993 :
"9.-(1) … The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
[4]At this stage, ex parte, we do not know what precisely happened in the course of Ms Hardwick's evidence but with a litigant in person giving evidence which the tribunal clearly regarded as being of importance but as of being too vague and too lacking in detail to assist them, it seems to us there is an argument for suggesting that the tribunal failed in its duty in not pursuing the matter and that and in so failing it was wrong in law. We have to say that we have come to that conclusion with certain reservations, but it does seem to us that this is something which should go to a full hearing.[5]As to the general perversity point: what is said is that the tribunal erred in law in the light of evidence that the appellant was suffering from post viral syndrome or ME/CFS as it is alternatively known, in holding that this did not amount to a disability and that the tribunal were perverse when in making their decision they relied on their views as to ordinary experience in working life as quoted at the end of the paragraph 12.[6]Again the matter seems to us just about arguable, therefore appropriate to go to a full hearing.[7]The third point that was taken on behalf Ms Hardwick today was that the tribunal was wrong in law in refusing to allow her to reopen her case after the respondents' case and after the first day's hearing when the evidence was concluded, to put in on the second day, at the time when submissions were going to be made, a written report from a specialist with whom she had consulted after the first day's hearing. On an application for review the Chairman wrote as follows:
"8. … At the commencement of the hearing [ i.e. 10th March ], the applicant indicated that she wished to present the written report of a specialist whom she had consulted since the previous hearing. The respondents' solicitor objected to this on the ground that the parties had both concluded their evidence. This objection was upheld and I directed that the report be removed from the bundle of documents which the applicant wished to put before us. …"
[8]It is suggested that that passage indicates that the tribunal Chairman may have been under the impression that as a matter of law the tribunal was bound to reject any application to reopen the case.[9]We do not think that there is any arguable point in that. It seems to us clear that the tribunal was exercising a discretion and we take the view that it was clearly exercising the discretion properly. In those circumstances we do not think that that third point is an appropriate point to go to a full hearing.[10]What we propose to do therefore is, first of all, is to direct that the Chairman be invited to provide notes of Ms Hardwick's evidence before the tribunal and to comment on the suggestion that the tribunal failed to conduct itself properly because it failed to ask Ms Hardwick to expand on the matters dealt with in paragraphs 12 and 13 of the reasons. We further direct that within 14 days Ms Hardwick puts in an amended Notice of Appeal to deal with the two matters characterised today by Mr George as being procedural perversity and general perversity and to delete other matters and that the case go for a full hearing on the basis that amended Notice of Appeal.[11]The case is to be listed for ½ a day, Category C.