INSTANT MUSCLE LTD v MR N KHAWAJA [2003] UKEAT 0502_03_2208

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0502_03_2208Case No Appeal No. EAT/0502/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
INSTANT MUSCLE LTDAPPELLANTMR N KHAWAJARESPONDENT
Before
His Honour Judge Ansell Mr D A C Lambert Mr R N StrakerDate 22 August 2003
[1]APPEARANCES For the Appellant MR R P DOUGLAS Adviser Instructed by: Smaller Business Advisory Services 34-36 Streetly Lane Sutton Coldfield West Midlands B74 4TU JUDGE ANSELL This is an application by way of preliminary hearing for this matter to proceed to a full hearing. It relates to a Tribunal's refusal to review a decision, the refusal to review was dated 22 April 2003. The original decision of the Tribunal had unanimously decided that the Respondent charity had not discriminated against the Appellant by dismissing him contrary to Section 5(1) of the Act but had failed to make reasonable adjustments to fire evacuation procedures to ensure his safe evacuation from the third floor in the event of fire and to allow him access to the third floor terrace. The review was in relation to that latter finding because the contention of the charity is that they do not occupy the third floor terrace. They have licences to certain rooms within a multi occupational office building and the formalities are governed by the terms of a licence for individual rooms or sets of rooms and it is claimed that therefore they do not occupy the third floor terrace which is essentially a common part or landlord's part of that building.[2]The issue of this terrace had not achieved great prominence until the matter actually reached a full hearing but it is not right to say that it had not been raised at all within the preliminary documentation. In the IT1 the complaint was set out as follows:
"Due to my being in a wheelchair I had limited access in the building. I was the only wheelchair user in premises and felt isolated I could not use the cafeteria. I had problems with fire doors, I was not able to take part in discussions in breaks. I do not believe any efforts or thought was given to my disability and how it affected my work."
The "discussions in breaks" were in fact an oblique reference to the terrace because that is where the employees used to go at times during their break times namely to the terrace up on the third floor. The matter was taken up in the IT3 again briefly on page 9 on the bundle, second page of that document; where the Appellant said as follows:
"We have no control over the building and no ability to make adaptations outside of our rented space (common areas)."
[3]So it seems to us that the issue was certainly highlighted at that stage. The appellant was represented by a charity worker who appeared at the tribunal. He did not deal with the issue of occupation of the terrace at the hearing. It is said that as the occupancy was not highlighted to him by the tribunal it was not raised by him at the time. It was that issue of occupation on which a review was sought. The Tribunal's decision on review having set out the obligations under Section 6, Disability Discrimination Act and raised the issue as to whether there was an obligation to make adjustments that being confined to physical features of premises occupied by the employer, found that the issue of the occupation both of the cafeteria, which was another area which was dealt with and where the Tribunal has actually found that it was an exclusive part belonging to the café owners and nothing to do with the tenants, and of the steps to the roof terrace were extensively canvassed in evidence and cross examination. The two issues were raised together by the Applicant. The Respondent raised the issue of occupancy in relation to the cafeteria but not in relation to the roof terrace.[4]The grounds of review were the well known ground that the interests of justice required such a review under Regulation 31(e). Case law has defined that term as meaning whether a procedural mishap has occurred. We can see no grounds to interfere with the Tribunal's decision and their refusal to grant a review - there has been no procedural mishap. We are quite certain that they would have had in mind although they did not say so explicitly the line of authority culminating in Lindsay v Ironsides Ray & Vials [1994] IRLR 318 which makes it quite clear that failings of representatives professional or otherwise will not generally constitute a ground for review. The head note of that case reads:
"that would risk encouraging a disappointed Applicant to seek to re argue his case by blaming his representatives for the failure of his claim and could involve the Tribunal in inappropriate investigations into the competence of representative who is not present or represented at the review."
It seems to us that that authority falls squarely with what happened in this case. Today Mr Douglas, for the Appellant has valiantly sought to distinguish that authority but we can see no grounds for doing so. What happened here apparently was that the representative failed to deal with the issue which had been highlighted within the preliminary documentation. So the issue was live albeit not a major one before it came to the Tribunal hearing. It assumed greater importance within the hearing and for some reason that we need not go into the representative did not take the point. We can see no grounds for criticising the review decision and we therefore do not propose to allow this matter to proceed to a full hearing.