MS O OBASA v 1) MS KERRY CHISHOLM 2) STEVE MCLIVENNY [2002] UKEAT 1455_01_2309

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1455_01_2309

Case No Appeal No. EAT/1455/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS O OBASAAPPELLANT

1) MS KERRY CHISHOLM 2) STEVE MCLIVENNYRESPONDENT

Before

Mr Recorder Langstaff

Date 23 September 2002

[1]APPEARANCES For the Appellant MR J SYKES (of Counsel) Instructed by: Messrs Pedro Emmanuel 17 Hill Street London W1J 5LJ MR RECORDER LANGSTAFF QC We have before us a Preliminary Hearing in a case which originated before the Bedford Tribunal. Extended Reasons for that decision were given on 18 October 2001. The Tribunal had been occupied by the case for ten days of evidence and one day of discussion. Amongst those ten days of evidence were three days in which the Applicant herself gave evidence.

[2]The length of that hearing is perhaps in part responsible for the length of the conclusions to which the Tribunal came. They were however dealing with three Originating Applications each of which raised more than one allegation. They were in summary complaints made by the Appellant in respect of breaches towards her of the Race Relations Act 1976 and the Disability Discrimination Act 1995. In each case it was alleged that there had been an act of discrimination against her. Moreover, she alleged that in the light of her disability reasonable adjustments could and should have been made by her employer yet in breach of Section 6 of the 1995 Act had not been made and she complained that there had been victimisation against her when she had raised issues of race and disability discrimination.

[3]The Tribunal in short determined that as to six matters it did not have jurisdiction because complaints about those matters were out of time. As to the complaint in respect of race and disability discrimination and victimisation it acknowledged that the complaints against the first Respondent were withdrawn and rejected the complaints in each case against the second, third and fourth respondents.

[4]The appeal which has been elegantly advanced before us with no little skill by Mr Sykes has done justice to the length of the proceedings and of the Tribunal decision and has advanced three essential grounds upon which it is said there is an arguable case which might go forward to a full hearing of this Tribunal. Although in respect of one matter of relatively small compass we feel that there is an arguable case which at least merits consideration, whatever the outcome may finally be, that it be because we have come to the view that we do not think that there is an arguable case in respect of any of the other matters we shall give our reasons a little more fully. They will however, attempt to be brief, we hope without sacrificing sense on the altar of brevity, relying on the extensive findings made by the Tribunal and for that matter to the summary of much of the matters contained in the skeleton argument that Mr Sykes has put before us. The Facts

[5]The Appellant was a team leader in the social care and health department of Northamptonshire County Council. She complained that almost from the outset of her employment in 1998 she lacked support for herself as a black and disabled woman. She complained that her first line manager failed to support her and to assess the effect of her disability upon her work. She was of African origin and suffered from sickle cell disease (that was the variant known as haemoglobin SC) which causes intermittent crises and pain and may result in a sufferer being weak, tired, having a tendency to anaemia and in the Appellant's case also have caused kidney abnormalities. Further she was diagnosed in late 2000, though self diagnosed a little earlier, as suffering additionally from dyslexia. The combined effects of those diseases were to cause her pain, tiredness and to affect her reading and writing.

[6]The Tribunal set out an overview of their findings at paragraph 20 sub paragraph 7 on page 19 of their decision. They began by saying this:

"Although findings as to discrete incidents and episodes are set out below it is perhaps pertinent at this stage to record the Tribunal's general finding that the Applicant's disposition when crossed, challenged, criticised or otherwise disagreed with was to attribute racism or discrimination by reason of her disability and often both at the same time to those who conducted themselves in that way towards her."

That was an expression of view which was to be repeated several times in one way or another throughout the decision. In the same sub paragraph the Tribunal concluded as a matter of fact that no Respondent had been guilty of less favourable treatment towards her on the ground of her race or on the ground of her disability. The Tribunal then proceeded in several pages to deal with specific findings and details of fact.

[7]Before us the grounds of appeal fell under three distinct heads. The first was in respect of jurisdiction. Here the argument as advanced by Mr Sykes was that the Tribunal was in error in categorising the six acts which had occurred more than three months prior to the onset of proceedings in respect of those events as being separate single acts. He argues that they should have been regarded as continuing acts. Both the Race Relations Act and the Disability Discrimination Act deal with the question of time limits in the same way. Section 68 of the Race Relations Act 1976 provides that:

"An [employment tribunal] should not consider a complaint (I miss out the immaterial words) unless it is presented to the tribunal before the end of (a) the period of three months beginning when the act complained of was done;"

However, Section 68 sub section 7 provides that: "(b) any act extending over a period should be treated as done at the end of that period; and (c) a deliberate omission shall be treated as done when the person in question decides upon it;".

[8]The Tribunal addressed its decision in respect of jurisdiction in paragraphs 77 through to 85. In reaching the conclusions it did it said that it rejected the submission made on behalf of the Appellant that the acts which it eventually concluded were out of time so that it had no jurisdiction to consider them were all part of a chain indicative of a policy or regime. It said in paragraph 78 that it has been persuaded that that was not the case. That, says Mr Sykes, is perverse. He conceded in argument that he would have to go that far before he could upset such a finding unless he could show some other error of law. In our view this is a finding which cannot be upset unless perversity or error of law is shown. We cannot see that any tribunal could be in the position of accepting perversity here. Accordingly we think there is no reasonably arguable case as to that. But the point of law which he takes is that the Disability Discrimination Act 1995 deals with discrimination of a very different sort from that which is made unlawful by the 1976 Act and for that matter of the type rendered unlawful by the 1975 Sex Discrimination Act. He points out that cases dealing with particular aspects of the 1995 Act have emphasised that the approach under the two 1970s Acts is not necessarily appropriate in the context of disability discrimination. Not least there is no duty to make reasonable adjustments in respect either of race or sex but there is in respect of disability discrimination.

[9]In that context (which colours many of his submissions on jurisdiction before us) he argues that the Tribunal should have taken a different approach to the question whether the acts were or were not continuing acts. So far as the disability discrimination case rests upon the idendification of discrimination having an adverse effect upon an employee the case is based and has to be based upon Sections 4 and 5 of the 1995 Act. Section 5 defines discrimination. It defines it in two parts. An employer discriminates against the disabled person:

"(a) For a reason which relates to the disabled person's disability. He treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and (b) He cannot show that the treatment in question is justified."

[10]In answering the question of whether there has been less favourable treatment it seems to us that any tribunal is bound to be answering a question which in that respect is very similar if not identical to the issues whether there has been less favourable treatment on the grounds of race or of sex. What is required is the Tribunal should identify the treatment, whether it is less favourable, then answer the causative question whether that is for a reason which relates in the case of disability to a disabled person's disability just as in a case of race or sex it relates to race or sex.

[11]Mr Sykes criticises the application to the issue of whether there was less favourable treatment in the present appeal of a test promulgated in King v The Great Britain-China Centre

[1991] IRLR 513

and approved by the House of Lords in Zafar v Glasgow City Council

[1998] IRLR 33

. The difficulty with his argument is that it is an argument that suggests that a view of the law favourable to the establishment by an applicant of a reason for less favourable treatment under the relevant statute should not have been adopted. It seems to us that even if that there were a tenable case that the 1995 Act was to be looked differently in this regard from the 1976 or 1975 Acts he would still suffer because he would have to suggest in the context of this appeal that the test applied was actually less favourable to the Appellant than the test which upon a proper view of the law should have been applied. We do not think that that is capable of argument. Accordingly we see no force in relying upon that view of the law.

[12]Next, he argues that in paragraph 79 of its decision the Tribunal took a conclusory approach. It had made general but overriding findings of fact in paragraph 20 sub paragraph 7. It has a duty to give reasons. He submits that the findings of fact were insufficient, for the Tribunal to hold that there was here no discrimination on the ground of race nor any on the ground of disability. The short answer, we think, is that having read the entirety of this judgment more than once we conclude that there is here sufficient to let the Appellant know why on this basis she lost and why the Respondent succeeded. Not every 'I' has to be dotted nor every 'T' crossed. A decision is sufficient if it indicates the essential facts and reasoning upon which it is based. We do not see there being any error here in the conclusion that there was no race discrimination nor any disability discrimination, however arguable those conclusions may have been before they came to be made.

[13]The second ground of appeal related to the Disability Discrimination Act. This was that the Employment Tribunal had misdirected itself in not identifying clear breaches of Section 6. Here the focus was not upon Section 5 of the Disability Discrimination Act which we have already cited but upon the duty arising under Section 6. Section 6 begins:

"(1) Where – (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."

[14]Before the Tribunal it was argued as they themselves record that there were two particular aspects in which adjustments ought to have been made but were not made in pursuance of the Section 6 duty. Those two aspects were first the provision of voice recognition software and hardware appropriate to run it in order to permit the Appellant to use her voice to create text rather than having the physical effort and difficulty of translating her thoughts into written form. The second was that there should have been a transfer policy which operated in the Appellant's case.

[15]So far as the first is concerned the Tribunal determined at paragraph 99 on page 74 of its decision that although there had been a significant delay in the provision of voice recognition equipment they nonetheless did not come to the view that the duty had been broken. The delay was from March 1999 when the need for some form of voice recognition existence was identified until February 2001 when it was finally provided. It is said by Mr Sykes with some persuasive force that that delay was of such an order that the Respondent must have been at breach of its Section 6 duty. The Tribunal concluded with some hesitation (as it described it) that given a very considerable number of other adjustments made including attempts to find alternative ways of relieving the Appellant of a clerical burden taking those in conjunction with what they described as the relatively untried nature of the technology:

"it would not be appropriate to say that there was a failure to comply with the section 6 duty."

[16]Mr Sykes queries the view expressed as to the effectiveness of relieving the Applicant of a clerical burden, that what was done related to her work in the office and could not relate to her work at home. He queries the way in which the untried nature of the technology was considered and complains that the inefficiencies of the contractors engaged to provide it were no excuse for the delay in implementation by the employer. He notes that there was an element of delay which was frankly unexplained. He complains that mitigation of the delay is an inappropriate praise. If there is a duty then it cannot be mitigated to such an extent that it disappears.

[18]However we think that the phrase "to mitigate" relates to the delay not to the duty. We think that it is unarguable that the Tribunal here are considering the question which is to be addressed by Section 6. The Tribunal came to the conclusion that there was no sufficient force in the arguments before it as to conclude that the steps taken were unreasonable or that the employer failed to take reasonable steps in all the circumstances. That is taking into account as one of those circumstances the delay, the extent of it and the culpability of it. We do not think that it can sensibly nor properly be argued that the Tribunal committed an error of law in that respect.

[19]It is however in relation to the second aspect in which it was claimed that the employer had a duty to make a reasonable adjustment that we think there is here an appeal which needs to be considered further inter partes. The complaint here is that the Applicant before the Tribunal claimed that there should have been a transfer procedure. It was recorded by the Tribunal as being one of the submissions made by the Applicant's representative to it. But yet when the Tribunal came to consider whether or not the Section 6 duty had or had not been performed we think it is arguable that there is no consideration of whether or not the issue of a reasonable internal transfer policy was ever addressed.

[20]We think that it may be arguable that such a policy might constitute, a step which it was reasonable for an employer to take in order to prevent arrangements or features on its premises having a substantial disadvantage upon the Appellant. To that extent and to that extent alone we think there is and remains an arguable point in this appeal.

[21]Thirdly, Mr Sykes addressed the question of bias. His case here was based upon the fact that the Employment Tribunal had adopted the approach toward the Appellant which we have already indicated. They interposed their findings of fact in order to state conclusions as to the view they had formed of the perception of the Appellant. That is that she was a victim. He pointed out that they made what they described as overriding findings without very clear bases and that they made comments which were wholly unfair: for instance that in paragraph 20 sub paragraph 9 identifying the Appellant as a litigious Applicant in respect of her former employers where that was of no relevance to the case before it. He notes that the findings of fact were coloured, indeed peppered, by references to her view that the world was against her. He complains that the Tribunal failed to take an even handed approach. Whereas it was forgiving of the Respondent employer's behaviour, it was not forgiving of the Appellant's when incidents arose which might have had an explanation (such as why it was that the Appellant got up and left a meeting before its conclusion).

[22]He argued that the Tribunal showed a lack of interest in the Appellant, but were prepared to assume the worst of her and the best of the Respondent. There was generally a lack of interest in her and her predicament and a preference for the Respondent's position. Indeed he added to that that although perhaps not significant on its own a fair Employment Tribunal would have offered an opportunity to the Appellant to have amended her particulars of disability to include dyslexia in addition to the sickle cell disease. Yet this Tribunal had not done the decent thing and offered her that possibility.

[23]All these points, he says, meet the test (or arguably do so) which is set out by the Court in his judgment delivered by Lord Phillips MR in the case of In Re Medicaments & Related Classes of Goods (No 2)

[2001] ICR 564

. The ratio is summarised at paragraph 85. The Court must first ascertain all the circumstances which have a bearing on the suggestion that a Judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or a real danger the two being the same that the Tribunal was biased. Bias in this sense is defined by paragraph 37. It is an attitude of mind which prevents the Judge from making an objective determination of the issues that he has to resolve. In particular Mr Sykes drew attention to that part of paragraph 37 which notes that a Judge may be biased because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness.

[24]The issue of bias however, as it seems to us, has to address itself principally to whether the Tribunal has or has not formed an irrational or prejudiced view of a witness either in advance or during the course of the hearing. Since it is common ground (Mr Sykes accepted) that an Employment Tribunal should be robust and may properly be trenchant in its views of witnesses the question is whether or not it has so expressed itself as to indicate an irrational hostility toward a witness. It would only be in such a case that the impartial observer of the Court hearing and reader of the decision could conclude that there was any real danger of bias rather than conclude that this was the Tribunal simply doing the job that a Court has to do. Part of that job may well be to comment upon the veracity or character of a witness. Part of that job in particular in a discrimination case where so much may depend upon perception may be to explain the perception of one party or another.

[25]We think, taking it globally and we hope not unfairly by doing so, that there is in this decision no material which would justify any reasonably impartial observer coming anywhere near the conclusion that there was a real possibility or real danger that the Tribunal was biased. The Tribunal came to the conclusion that it did not accept the Applicant's case. It made comments about her. Those comments were in the event partial. The making of them does not in our view suggest any pre existent bias nor any irrational prejudice toward her. It follows that we are bound to reject the arguments addressed to us in respect of bias. Although we have not separately addressed them we have not overlooked the points made to us in paragraphs 23-28 of Mr Sykes Skeleton Argument. Suffice it to say they were secondary to the bias issue and explanatory of it and we do not think that they had any such separate or sufficient force as to require any different decision of us, reminding ourselves that the test that we have to address is whether there is or is not here any reasonably arguable case.

[26]We think that we have to dismiss this appeal in every respect save in the one that we have mentioned and identified in this judgment. That should, despite the length of the judgment which has to be considered by the Tribunal take no more than two hours in total to argue and determine. It would be a great surprise to us if the argument for the Appellant could not properly and fully be advanced within forty five minutes. Skeleton Arguments addressed to that issue alone and annexing photocopies of any cases to be relied upon must be supplied no less than fourteen days prior to the hearing. For listing purposes it is Category C.

[27]We are asked to give permission to appeal in two respects in relation to the ground of bias advanced by Mr Sykes. The two points which he would seek to urge upon the Court of Appeal are that this Tribunal erred in not finding that the Employment Tribunal was biased in failing to give reasons for its conclusion other than relying on findings of fact themselves coloured by partial comment and second that the well informed observer as defined in In Re Medicaments on hearing the order of the Employment Tribunal and the way in which it was reached would have a reasonable apprehension of bias. Having concluded there was here no reasonable case to go before the Employment Appeal Tribunal we decline to give permission to appeal. Any application needs to be restored before the Court of Appeal itself. As to any directions as to the hearing we have permitted the hearing to go forward in the event that a Lord Justice of Appeal is persuaded as we have not been that there is an arguable appeal on the bias issue then further directions may be sought from the Registrar as to whether the hearing of this appeal should await the determination of the Court of Appeal.