MS D WOODRUP v LONDON BOROUGH OF SOUTHWARK [2000] UKEAT 702_00_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 702_00_0911Case No Appeal No. EAT/702/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D WOODRUPAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
His Honour Judge J R ReidLord Gladwin of CleeDate 9 November 2000
[1]APPEARANCES For the Appellant THOMAS KIBLING (Of Counsel) Instructed by The Disability Law Service 39-45 Cavell Street London E1 2BP JUDGE J R REID QC This is an Ex Parte Preliminary Application in an Appeal by Mrs Dorette Woodrup who was the Applicant below against a decision of an Employment Tribunal sitting at London (South) on 27 March by which it dismissed her claim under the Disability Discrimination Act 1995 against the London Borough of Southwark.[2]Because we propose to give leave for the matter to go for a full hearing and for an amended Notice of Appeal to be served, it is probably as well to say as little as possible about the case. It appears, however, that things may have gone somewhat awry in the Employment Tribunal.[3]Mrs Woodrup says that she suffers from a mental condition and it is for that reason that she is disabled. The decision, which was taken after a hearing at which she represented herself and which no witnesses were called, contains 2 passages which appear to be the determinant passages. One is paragraph 10 of the Extended Reasons in these terms and the other is paragraph 12. Paragraph 10 reads:
"The Applicant claims to have a mental condition for which she has been receiving therapy for a number of years. While not disputing this assertion, the Tribunal is unable to allow the Applicant's claim to proceed further because the Applicant failed to produce any evidence to the Tribunal to demonstrate that her disability had a substantial effect on her day to day activities. No medical evidence was offered to the Tribunal to support the Applicant's claim."
Paragraph 12 reads:
"The Tribunal concludes that in the absence of medical evidence the Applicant was unable to substantiate her claim for disability discrimination which therefore fails and is dismissed."
[4]The problems that those 2 paragraphs give rise to, are first, that there does appear to have been medical evidence before the Tribunal. The Tribunal refers to several additional documents that were submitted by the Applicant at the beginning of the hearing - see paragraph 5 - but then, having said, "Reference is made to these documents below", does not in fact make reference to those documents below. One of those documents was a certificate from a consultant psychotherapist at The Maudsley Hospital, which indicated that Mrs Woodrup had been under care there since beginning of 1992. The second paragraph of the report reads:
"She has made good progress in psychotherapy and it is very gratifying that she now feels well enough to move on into employment. However she is not yet recovered enough to leave the psychotherapy group and indeed were she to leave prematurely it could jeopardise the recovery she has so far achieved."
So, it seems that something may have gone amiss when the Tribunal said that no medical evidence was offered to the Tribunal to support the Applicant's claim.[5]Secondly, it is far from clear to what extent the Applicant gave evidence or was prompted by questions to tell the Tribunal about the ways in which she was affected in her day to day life. There appears to have been, at any rate, some material before them which would have merited further examination. For example, in the IT1 form she says as follows:
"Following on from the decision of my internal complaint, I was invited and attended an interview on Monday 2 nd August 1999 for the post of, Housing Assistant. When I walked into the interview and sat down my mind froze, therefore affected my performance. The mind freeze was unexpected and unexplainable at the time. For reasons relating to my disability I could not tell the interviewing panel what I was experiencing. Distressingly, I carried on with the interview."
[6]All of this leaves us with an uneasy feeling that matters may not have proceeded as they should have done before the Tribunal and it may be that the Tribunal fell into error in not looking at the question of her physical or mental impairment as a matter of fact.[7]In those circumstances, it seems to us that for those reasons, the matter should go forward. It seems also to us that there are serious general issues which are raised in the proposed amended Notice of Appeal which do warrant a full hearing. As I say, given that is going to a full hearing is probably the less said the better, particularly, as there is a certain miasma about what precisely did occur in the Tribunal. We think some of that miasma may instantly disperse if the Chairman's notes are available. So what we propose to do, is first, to direct that the matter go for a full hearing. Second, to give leave for an amended Notice of Appeal which will be in the form of the draft amended Notice of Appeal supplied to us save that a new ground 6 will be added. That will be lodged and served within 14 days. Thirdly, to direct that the Chairman's notes, which we suspect will be brief should be made available and lastly, to direct that the matter be set down as a Category B case and the time estimate we will give it at present is half a day.[8]If it emerges, because of proposed general points which have to be ventilated, that is going to be insufficient, the parties must of course tell the Tribunal as soon as they possibly can.