MS V E DRYSDALE v LONDON BOROUGH OF HARINGEY [2001] UKEAT 1501_00_0904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1501_00_0904Case No Appeal No. EAT/1501/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS V E DRYSDALEAPPELLANTLONDON BOROUGH OF HARINGEYRESPONDENT
Before
Mr Justice Hooper Miss C Holroyd Mr P R A JacquesDate 9 April 2001
[1]APPEARANCES For the Appellant MR D O'DEMPSEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE HOOPER This is an appeal against the decision of the Employment Tribunal held at London Central, the extended reasons for which were sent to the parties on 21 November 2000. Following a hearing lasting 4 days in May, July and September, the Tribunal decided unanimously that the Appellant was not unfairly dismissed. Against that decision the Appellant herself drafted grounds of appeal and has also prepared for us a skeleton argument dated 19 March 2001.[2]We have read through those grounds and that skeleton argument with care. We have looked for any arguable grounds contained therein. We take the view that everything raised there is essentially an attempt to re-argue the facts of the case. This morning however, Mr O'Dempsey, for whose help this Tribunal is extremely grateful, has presented an amended Notice of Appeal, with a new ground 1. We grant leave to amend the Notice of Appeal in that way.[3]The thrust of his argument before us today is that, either at the start of the hearing, or during the course of the hearing, the Tribunal should have recognised that this case was, or potentially was, a case under The Disability Discrimination Act 1995 and have investigated the matter of its own motion. We shall assume that it is arguable that there is such a duty upon a Tribunal. We shall therefore look to see whether there was material available to the Tribunal which would have suggested to it that this was properly a case also under The Disability Discrimination Act 1995 . It is right to say that the Appellant was represented before the Tribunal by Mr Richards, a union representative. The Respondent was represented by counsel. It was suggested by Mr O'Dempsey that it may be that a union representative does not have the same ability to spot points that counsel might have. We accept that it may be that Mr Richards would not have had as much knowledge about the area as counsel.[4]The Appellant was employed by the Respondent, the London Borough of Haringey, as a housing manager from 19 January 1995 to 24 December 1999. In 1997 the Appellant was the subject of threatening and abusive behaviour by the husband of one of the tenants in the area for which she was responsible. Thereafter, in June 1998 she received mail which was of an intimidatory and threatening nature. These incidents caused the Appellant a great deal of stress and upset. She was certified as unfit to work from 18 June 1998 because of anxiety and post-traumatic stress disorder (see paragraph 2(i) of the extended reasons at page 15 of the bundle).[5]If we look at the notice of appearance by the Respondent we find more about the history of the matter. According to the Respondent, the date that she became sick was July 1998 rather than June. That does not matter and it may be that the issue became clarified during the course of the hearing. In June, the Council wrote to her arranging for her to have counselling. On 11 September 1998, according to the Respondent, the Council met with Ms Drysdale to discuss the possibility of her returning to work. At that time she was not ready to return to work. We set out paragraph 5 and 6 of the Respondent's notice of appearance:
"5 On 13 October 1998, Occupational Health advised that Ms Drysdale was fit to return to work as long as she had no contact with the public. Occupational Health advised that the Council should permanently redeploy Ms Drysdale as it no longer considered that she would be in a position to fulfil the duties of her position at any time in the future. Ms Drysdale's own GP wrote to the Council on 27 October 1998, confirming that she was fit to return to work if she was not placed in a position which could lead to any conflict with the public. The Council looked at the possibility of altering Ms Drysdale's position so that she could return with no risk of further abuse from the public. The Council was unable to find any way to alter Ms Drysdale's position to ensure that abuse would not occur again. In addition, Ms Drysdale did not want to return to her original post. The Council then placed Ms Drysdale in its redeployment pool in order to find an alternative position for her. 6 On 3 December 1998, the Occupational Health Unit confirmed that the restriction on Ms Drysdale dealing with the public should be considered permanent. From 21 December 1998 until 31 March 1999 Ms Drysdale worked in a temporary position as a quality and development officer with the Council. Unfortunately, this position terminated and the Council had no other position to which it could redeploy Ms Drysdale. Ms Drysdale was unable to return to her original position, as she was not capable of completing the duties it required."
[6]What it is important to note is that within some 4 months of her going sick, both her general practitioner and the occupational health unit confirmed that she was fit to return to work provided she was not placed in a position which could lead to any conflict with the public. Faced with that information, the Council then looked at the possibility of altering her position so that she could return to work with no risk of further abuse from the public. The central issue before the Tribunal was whether or not the Respondent had made reasonable efforts to redeploy the Appellant into a different post.[7]In December 1998, the Appellant returned to work, and worked until March 1999 (see paragraph 2(vii) at page 16 of the bundle). She returned to work in August 1999 and worked till September 1999. On 14 October she was sent a letter dismissing her, on the grounds of capability: "In accordance with the sickness absence monitoring and control procedure." (see paragraph 2(ix) at page 17 of the bundle)[8]We now turn to the Appellant's own ET1 which can be found set out at page 22-25 of the bundle. It will be noted that Box 1 on page 22 has not been filled in. In box 11 on page 23 is the following passage, to which Mr O'Dempsey has referred us:
"As a consequence of the above I am diagnosed by their welfare unit and occupational health doctor as having post-traumatic stress disorder."
That appears not to have been disputed before the Tribunal. Mr O'Dempsey also refers us to passages at page 24:
"I am dismissed on capability. They do not specify within which capacity. I am perfectly capable of carrying out the duties of housing management, intellectually and physically. The only incapability is that if that is indeed a fair choice of words, must refer to my mental health. That is mental health discrimination and contravenes their own equal opportunities policy as well. If I am available for work and have amply demonstrated capability I cannot be sick. Post traumatic stress is a condition not an illness."
At the bottom of the page, can be found the words:
"I was unfairly treated and unlawfully and unfairly dismissed."
We are told that, at the start of the hearing, the Chairman said to the Appellant that he presumed that this was a case of unfair dismissal, to which the Appellant, herself replied, 'yes'. It is clear that at no stage did anyone regard this as a case of disability discrimination. One can see, at the top of page 19 of the bundle, the Tribunal referring to a case in which the claim was for disability discrimination and pointing out that that was not relevant to the case with which it was concerned. It follows that neither at the beginning of the hearing or at any time during the hearing, did the Tribunal itself or the trade union representative take the view that this was also a disability discrimination case.[9]The question that we have to ask ourselves, is whether it is arguable, on the material that was available to the Tribunal that the Tribunal should have recognised a possible claim under the Disability Discrimination Act 1995 . Looking at the definition of disability in Section 1 of the Act, we take the view that this is not arguable. As Mr O'Dempsey conceded, there was nothing in the pleadings to suggest that the definition was satisfied.[10]The Appellant was not able to do one job within the organisation but otherwise had not been certified unfit for work. Indeed she had returned to work for some period of time. In those circumstances we take the view that this was not a case where the Tribunal could be expected to identify a claim under The Disability Discrimination Act 1995 . In those circumstance, this appeal is dismissed.