MR S NOOR v HOME OFFICE (BORDER & IMMIGRATION AGENCY) [2008] UKEAT 0252_08_0312

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0252_08_0312

Case No Appeal No. UKEAT/0252/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S NOORAPPELLANT

HOME OFFICE (BORDER & IMMIGRATION AGENCY)RESPONDENT

Before

His Honour Judge Ansell

Date 3 December 2008

[1]APPEARANCES For the Appellant MR S NOOR (The Appellant in Person) For the Respondent MR DUNLOP (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) One Kemble Street London WC2B 4TS SUMMARY PRACTICE AND PROCEDURE: Estoppel or abuse of process Tribunal correct in applying issue estoppel to claim of disability no new facts had emerged since previous tribunal decision that he was not a disabled person. HIS HONOUR JUDGE ANSELL This is an Appeal from a decision of a Reading Employment Tribunal chaired by Mr Soulsby who, following a hearing on 13 November 2007, determined in a judgment sent to the parties on 18 January 2008 that Mr Noor's claim for disability discrimination should be dismissed. They decided this issue on two grounds, firstly because in previous proceedings determined in July 2005 a tribunal had decided that Mr Noor was not a disabled person. The Tribunal ruled that the doctrine of issue estoppel applied so that the Tribunal could not hear the same issue.

[2]Secondly, they determined that even if the doctrine of issue estoppel did not apply the facts before the Tribunal showed that Mr Noor was not a disabled person within the mean of Section 1, Disability Discrimination Act 1995 . The Tribunal also determined that the claim was misconceived and that it was unreasonable for Mr Noor to present this claim and ordered him to pay a sum of £500 contribution towards the Agency's costs. Mr Noor also appealed an interlocutory decision of the Registrar of the Court refusing leave to introduce fresh evidence. In a Decision dated 17 September 2008 the Registrar determined that the application to introduce fresh evidence was misconceived, and did not address the principles set out in paragraph 8 of the EAT Practice Direction.

[3]Leave for this full hearing had been given by His Honour Judge Burke QC at a Rule 3(10) hearing in respect of the grounds of appeal set out in an Amended Notice of Appeal. Background Facts

[4]The background facts are that Mr Noor has worked for the agency previously known as the Immigration and Nationality Directorate since 12 January 2004 and his employment is continuing. He claimed on the basis that the rejection of his application for promotion following an assessment on 29 January 2007 was unlawful discrimination contrary to the Disability Discrimination Act 1995 .

[5]The Tribunal noted that Mr Noor had twice brought proceedings against the Agency and in particular on 11 July 2005 the Tribunal had decided that he was not a disabled person. On that occasion the evidence showed that Mr Noor suffered from dyslexia but it did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.

[6]The judgment recorded that the Tribunal in 2005 had considered various assessments and psychological reports which confirmed that although he was dyslexic he was not seriously affected by the dyslexia. In paragraph 3.4 the Tribunal noted that Mr Noor's evidence before them set out as, 'Reading and de-coding words, missing out words, necessitates the use of coloured slides to assist reading, creates a problem of distinguishing between left and right, results in him being easily distracted and lacking concentration and causes problems with his speech being a stammer,' were factors before the Tribunal in 2005.

[7]The Tribunal noted that there was no up to date psychological or other expert assessment. There was a further report from an occupational health specialist dated 11 November 2007 but it did not give any detail as to the severity of the dyslexia and no indication as to how in the specific case of Mr Noor it might affect his ability to carry out normal day-to-day tasks. The Tribunal also noted in paragraph 3.6 his considerable academic achievements, literary and reading skills and also noted that recent appraisals at work showed that his own report writing skills indicate a very high standard.

[8]The Tribunal concluded that the issue they were dealing with was the same issue as had been considered by the 2005 Tribunal involving the same parties and substantially the same facts. The Tribunal recorded that no new evidence was available that would not have been available at the previous hearing and rejected the contention from Mr Noor that it was relevant that his work role had changed. In any event they did not accept that there was any significant change in that role and therefore considered the doctrine of issue estoppel applied and the claim should be dismissed. In the alternative they went on to consider the evidence as to whether or not he was a disabled person and concluded that he did not have any significant adverse effect on his ability to perform normal day-to-day tasks.

[9]The grounds of appeal are that firstly the Tribunal erred in finding that the doctrine of issue estoppel applied because(a) it was a requirement of issue estoppel that the subject matter had to be the same, whereas in this case Mr Noor argued that there were substantial differences both as to time and also in relation to the different job he was performing; and

(b) the Tribunal failed to apply the exception to issue estoppel set out in the case of Arnold v National Westminster Bank

[1991] WLR 1177

. Essentially Mr Noor argued that the Tribunal were in error in concluding that he was not disabled in that they found that there was no recent evidence, whereas there was, and wrongly assessed his disability on the basis of his achievements. Thirdly, he complained as to the Tribunal's awarding costs as a consequence of the issue estoppel finding.

[10]In relation to the first ground, Mr Noor argued that an essential requirement to give rise to issue estoppel must be that the subject matter between the parties must be the same. He argued that whilst the parties were the same and the issue of whether he was disabled was the same, the claim was in respect of entirely different acts of discrimination separated by three years. At the time of the earlier claim he had been working as an assistant immigration officer based in Dover involved in searching vehicles, whereas at the time of the 2007 proceedings he was an immigration officer based at Heathrow Airport with greater responsibilities, particularly the interviewing of foreign nationals and the preparation of reports.

[11]His second claim had involved the rejection of his application for a promotion to higher executive officer. He also contended that there was different evidence in terms of the further 2007 Occupational Health Report from Ellain Lim as well as the evidence he gave to the Tribunal in respect of his disability and its effects. He also contended that the Tribunal failed to apply the exception in special circumstances to the doctrine of issue estoppel, namely where further material had become available to a party which was relevant and which could not by reasonable diligence have been adduced in the earlier proceedings. He also sought to place before me a more recent report from Liz Shenier, a work occupational psychologist, prepared on 10 September 2008 for the Agency which he contended set out further difficulties faced by him in his current job, thereby providing further evidence as to the substantial adverse effects caused to him at the work place by reason of his dyslexia.

[12]Mr Noor relied on the authority of Arnold where the House of Lords determined that although issue estoppel constituted a complete bar to relitigation between the same parties of a decided point, its operation could be prevented in special circumstances where for example further material relevant to the correct determination of a point involved in earlier proceedings which could not by reasonable diligence have been brought forward in those proceedings became available, could give rise to an exception to issue estoppel whether or not the point had been specifically raised and decided. The particular facts of the Arnold case involved not matters of fact but where a judge had made a mistake and the higher court overruled him in a subsequent case. The House of Lords determined that justice required that the party who suffered from the mistake should not prevent it from reopening that issue when it arose in later proceedings.

[13]For the Agency, Mr Dunlop argued that Arnold was a case decided on its own very special facts and should not be taken as a general principle that whenever there is further material available to a party which could not have been adduced in earlier proceedings issue estoppel can be revisited - see Curling v Securicor

[2001] EWCA Civ 358

at paragraph 34. He invited me to adopt the approach set out in McLoughlin v Gordons (Stockport) Limited

[1978] ICR 561

. In that case the claimant had brought an equal pay claim and the industrial tribunal found that there were material differences between her and her comparator. Six months later she brought another application and the employer relied on issue estoppel. The claimant argued there could never be issue estoppel in equal pay claims because the situation was never static. The Tribunal found that she was barred by issue estoppel and the EAT dismissed her appeal. Mr

Justice Kilner Brown giving the Judgment to the Court said at page 563F:

"The basic principle of Issue Estoppel is that the same facts have been previous adjudicated and not successfully appealed and that there has to be a finality of litigation."

He continued at 564A:

"The facts were never quite the same and the position was ephemeral and capable of variation. If this be the foundation for all these instances where issue estoppel has been ruled out, there is a powerful argument for saying that so also in equal pay cases the situation is continuous and not static. But it that conclusive? In our view the cases indicate that there has to be something more than mere potential for change and variation before jurisdiction is exercised and issue estoppel ruled out. Thus in revenue cases a tax assessment is not necessarily the same each year. A matrimonial dispute may range over a variety of alleged misconduct. A gypsy by his very nature may be unpredictable and may be regarded as a gypsy on one occasion but not on another. On the other hand in a second application made under the Equal Pay Act 1970 the comparison may once more be with the same person; the pay differentials may still exist as before and, most importantly, they may be still doing the same work. The practical difficulty in disapplying issue estoppel is that on a failure to succeed the applicant may the next day make a fresh application and similarly over and over again. The obvious and proper course is to take the question up on appeal."

[14]Mr Noor argues that McLoughlin should only apply to equal pay claims but I reject that suggestion. Whilst I accept that the situation in disability discrimination cases is not static and the effects of an illness or disability can have an increasingly adverse effect on an employee, once a tribunal has determined that the impairment did not have a substantial adverse effect on an employee's ability to carry out normal day-to-day activities, it seems to me that there would have to be an appreciable difference in the facts relating to the adverse effects if issue estoppel was not to apply in the future. Simply because the issue has the potential to change over time is not in my view sufficient for issue estoppel not to apply. Further, I agree with Mr Dunlop when he submitted that any changes must be viewed against the findings made by the original tribunal in 2005 who had considered Mr Noor's evidence as well as four separate reports including a 13 page report from Ms Dinham, a chartered educational psychologist who had reviewed previous reports and noted Mr Noor's account of his various difficulties.

[15]Mr Noor argues that there were significant changes from the 2005 position, both as regards his work and also the further report from Ms Lim. As regards change in work Mr Noor referred us to a decision of the EAT in Paterson v The Commissioner of Police of the Metropolis

UKEAT/0635/06/LA

where Mr Justice Elias approved the ECJ Decision in Chacón v Navas

[2006] IRLR 706

and concluded that day-to-day activities could include activities which were relevant to participation in professional life. At paragraph 67 Mr Justice Elias said this:

"Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of a disability may adversely affect promotional prospects, then it must be said to hinder participation in professional life."

[16]Mr Noor contended that he was having increasing difficulties in dealing with the written work aspect of his employment, arguing that such mistakes affected his promotion prospects. He argued he was disadvantaged in carrying out the everyday activity of reading and comprehension which in itself was a normal day-to-day activity.

[17]Mr Dunlop responded by submitting that the nature of someone's job cannot logically affect the question of whether or not he is disabled. He referred me to Goodwin v The Patent Office

[1999] IRLR 4

where at page 9 Mr

Justice Morison, giving the Judgment of the EAT said this:

"On the assumption that the impairment and adverse effect conditions have been fulfilled, the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. "

Substantial" might mean "very large" or it might mean more than minor or trivial. Reference to the Guidance shows that the word has been used in the latter sense: see paragraph A1. The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to "manage," although tribunals will be slow to regard a person's capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities. The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities is clearly more than trivial ." He also referred me to paragraph D7 of the Secretary of State's guidance on matters to be taken into account in determining questions relation to the definition of disability:

"Normal day-to-day activities do not include work of any particular form because no particular form of work is 'normal' for most people. In any individual case, the activities carried out might be highly specialised. In addition, the Act only covers effects which go beyond the normal difference in skill or ability."

[18]I agree with Mr Dunlop that the Tribunal has to focus not on his particular circumstances in relation to a task but rather his general abilities in relation to reading, writing and language skills.

[19]In any event, Mr Dunlop argued that on the facts of the case the Tribunal were unable to determine any deterioration in his situation from 2005 to 2007. They dealt with the issue at paragraph 3.6 as follows. Later at paragraph 8 they said this:

"Taking account of the achievements of the Claimant both in his private life and at work as set out the summary of the facts above it is clear to the Tribunal that the Claimant's condition is not having any significant adverse effect on his ability to perform normal day-to-day tasks."

[20]As to the argument advanced by Mr Noor that the Lim report provided a sufficient change of circumstances the Tribunal dealt with the report in paragraph 3.5 as follows:

"There is no up-to-date psychological or other expert assessment before the Tribunal. An occupational health report dated 11 November 2007 is before the Tribunal but it does not give any detail as to the severity of the dyslexia and no indication as to how in the specific case of the Claimant it might affect his ability to carry out normal day-today-tasks."

[21]It seems to me that the Tribunal were perfectly entitled to come to that view on the report. It is contained in the bundle of documents before me and I agree with the view taken by the Tribunal that it is a very general report containing far less detail than those reports that were before the 2005 Tribunal. The report does not make any reference to those previous reports nor to the Judgment in 2005. Mr Noor invites me to pay particular attention to the answer at section 4. The question was, "Is the medical condition likely to fall under the provisions of the DDA?" Answer, "Yes it is likely to be covered by the DDA". There is no further qualification or explanation to that answer and I agree that the Tribunal were entitled to reject it in terms of amounting to any major change of circumstances.

[22]Mr Noor seeks to use the September 2008 report from Liz Shenier in the same way. Although I accept that the costs of retaining experts' reports are high, it was up to him to present this evidence before the Tribunal. In any event, I accept Mr Dunlop's argument that a report dated September 2008 was of absolutely no relevance in relation to the consideration of his ability at the time when the alleged discrimination took place in early 2007 - see McDougall v Richmond Adult Community College

[2007] ICR 1567

[23]In conclusion on this issue the Tribunal were entitled to come to the view that there was no substantial or new evidence that would not have been available at the previous hearing and indeed it went on to find that the evidence did not indicate any significant change in his work role or skills needed. I cannot find fault with that conclusion.

[24]As an alternative the Tribunal went on to consider afresh whether Mr Noor was a disabled person assuming that the doctrine of issue estoppel did not apply. Mr Noor's complaint is that the Tribunal ignored the recent evidence that he had provided both from his own evidence and from the Lim Report and also claimed that the Tribunal paid far too much attention to his academic and literary achievements, ignoring the difficulties that he was facing at work. I have referred above to their factual findings as to his more recent work assessment set out in paragraph 3.6 and it does seem to me that this fresh consideration of disability and its effects is very much a factual assessment that in the absence of perversity this Court would be reluctant to disturb. The Tribunal considered the evidence that he had given in relation to his more recent activities at work and also gave consideration to the Lim Report although for the reasons they explained at paragraph 3.5 did not give much weight to it. It seems to me that they were entitled to consider his academic achievements as well as his current literary interests when he was suggesting that he was having increasing difficulty with the preparation of reports at work. His allegation was not confirmed by work assessments which suggest that his written work was of a high standard and indeed had improved. I cannot find fault with the Tribunal's process or conclusions.

[25]The same applies to the order for costs. The Tribunal noted that they had drawn his attention before the hearing to the necessity of producing definitive medical evidence and also noted that he had received on two occasions a costs warning from the Agency's solicitors. In the light of those factors and the previous Judgment, the Tribunal were in my view entitled to conclude that it was unreasonable for him to again present a claim alleging disability in the absence of any compelling or fresh evidence to support his second claim. Again I can find no fault with the Tribunal's process or conclusions and for these reasons both appeals are therefore dismissed.