Sud v London Borough Of Ealing (Disability Discrimination) [2012] UKEAT 0482_11_2905

EAT
Sud v London Borough Of Ealing (Disability Discrimination)
[2012] UKEAT 0482_11_2905 · 2012-05-29
[1]These are appeals brought by Ms Sud against decisions of the Employment Tribunal held at Watford. The first followed a hearing that ran between 7 and 23 September 2009. The Tribunal dismissed all of her claims save for a claim of disability discrimination by reason of the failure to make the reasonable adjustment by way of provision of aids and adaptations to assist her to work at home by reason of her physical disability. The second decision followed a hearing on 22 February 2010, in which, on the application of the Respondent, London Borough of Ealing, the Tribunal made an order in the Respondent’s favour that the Claimant pay 50 per cent of the Respondent’s costs, to be subject to detailed assessment unless otherwise agreed. Permission was given at a preliminary hearing by the EAT on 1 February 2012 for the Claimant to proceed in respect of her appeals to a limited extent, namely on the issues whether (1) the Employment Tribunal erred in failing to take account of the deduced effect of the Appellant’s illness, as required by Schedule 1 paragraph 6 of the Disability Discrimination Act (DDA), and (2), if the Appellant succeeds on issue (1), whether the costs order should be set aside. We have been greatly assisted by the written submissions, supplemented by the oral submissions, of Mr Engelman and Mr Downey of counsel, which have enabled us to focus on the essential issues in these appeals. Disability discrimination appeal[2]We deal first with the appeal in respect of the disability discrimination. The issue upon which the Tribunal found against the Appellant, and the subject of this appeal, was whether she suffered a disability within the meaning of the DDA in respect of her mental condition. The Employment Tribunal had to consider this issue against the statutory framework and, in particular, Schedule 1 of the DDA. In particular, and focussing on the issue of normal day‑to‑day activities, paragraph 4 of that Schedule provides that:
“An impairment is to be taken to affect the ability of the person concerned to carry out normal day‑to‑day activities only if it affects one of the following— (a) mobility; […] (g) memory or ability to concentrate, learn or understand; […].”
[3]Paragraph 6 of that Schedule, headed “Effect of medical treatment”, provides by sub‑paragraph (1) as follows:
“An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day‑to‑day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”
[4]The claim, as originally made by the Claimant in respect of her DDA case, can be best summarised at paragraph 2 of the grounds of complaint attached to the second Employment Tribunal claim which she brought after she had been dismissed from the employment of the London Borough of Ealing. The first complaint was made in advance of that event. Paragraph 2 reads, in so far as is relevant, as follows:
“The Claimant is disabled under the DDA as she suffers with frozen shoulder, and clinical depression and anxiety disorder. These conditions substantially affect her normal day‑to‑day activities, without medication and treatment.”
[5]The Employment Tribunal heard a great deal of evidence, in particular from the Claimant and her husband, but also in the form of medical evidence from Dr Royston. His evidence had originally been furnished in the form of a report, which was admitted by the Tribunal in the teeth of opposition by the Respondent, who complained that it was furnished at the last minute; it was dated within 12 days of the start of the Tribunal hearing. No permission had been given by the Tribunal for such report. There was no opportunity for the Respondent to question Dr Royston in writing, or to have the Appellant examined, or to obtain its own medical evidence. Nonetheless, the Tribunal admitted it.[6]The main thrust of the Appellant’s claim in respect of disability discrimination seems to have focussed on the question of whether her ability to concentrate was affected. In that respect there was a great deal of evidence and the Employment Tribunal had to consider whether or not it accepted the Claimant’s evidence, either given by herself and/or supported, effectively, by her husband. A great deal of Dr Royston’s report concerned that issue, but, as he accepted, the vast majority of his conclusions were based on what the Claimant had told him. At the hearing, Dr Royston was subject to cross‑examination in which it was put to him that the degree to which the Claimant had been able, in the course of the period during which she was claiming to be suffering from the disability to which we have referred, to send and engage in lengthy and frequent correspondence with the Respondent, (to the extent that she was responsible for writing that correspondence or providing the information on the basis of which it had been written), told against her claim to be suffering a difficulty in concentration.[7]The Tribunal, in its decision, found against this part of the Claimant’s claim. They did so on the basis of their view of her credibility. However, the Tribunal itself, exercising the inquisitorial approach that, in this kind of case, is thought to be desirable and encouraged, raised, for the parties to consider, the issue whether her mental condition gave rise to a disability under the Act because there was a substantial effect on her normal day‑to‑day activities affecting her mobility. The issue of mobility arose from evidence to the effect that, by reason of her mental condition, the Claimant was suffering from, what can be summarised as, workplace phobia; that is to say, an inability, through her fears, to travel to her place of work or to go to the vicinity of her place of work. The Tribunal expressed itself in paragraph 263 as follows:
“It occurred to the Tribunal, although it was not specifically raised on the Claimant’s behalf in the issues, that the difficulty in travelling to her place of work might be said to have had an effect on the day to day of activity [sic] of mobility.”
[8]The Tribunal, therefore, considered whether, on that basis, she was disabled within the meaning of the Act. They said as follows:
“269. […] The Tribunal’s conclusion in relation to this allegation was that there was a limited effect on mobility associated with a specific phobia relating to the place of work and the vicinity of the place of work. This was indicative of an effect that fell on the side of the line that was not substantially adverse on day to day activities. We came to that conclusion because we considered there to be a very substantial difference between an inability to go to, or within the vicinity of, the place of work as compared to someone who, as foreshadowed in the guidance, is, for example, unable to go out of their home unaccompanied. 270. As an indication that this was a fairly finely balanced argument we add this. We have considered whether the effects upon the Claimant’s mobility, taken cumulatively with effects on concentration, would be sufficient to say that there was a substantial and long term adverse effect on her day to day activity. Had we been satisfied on the evidence that the Claimant had some impairment of concentration of the kind she contended for, then we would have considered that, taken together with the limited effect on mobility, the Claimant would have been a disabled person having regard to the mental impairment that she alleged. 271. We therefore concluded that the Claimant was not disabled by reason of a mental impairment, although she was a disabled person by reason of the physical impairment described above.”
[9]Mr Engelman says that the question whether the Claimant was a disabled person on the basis solely of her limited mobility arising from her mental condition was, in the terms of the Tribunal’s decision, a finely balanced argument and that she might well have been regarded as being disabled if there had been any significant additional weight to be placed upon that side of the balance. Mr Engelman’s appeal, in this respect, is that the Tribunal erroneously failed to have any regard to the effect of medical treatment: that is to say, if you strip away the effect of treatment upon an underlying condition as a result the disability, and what is left is of greater seriousness or has a greater effect, then paragraph 6 of Schedule 1 requires that greater seriousness or greater effect as being the true measure of the Claimant’s disability.[10]Dr Royston in his report was responding to a letter of instruction from the Claimant’s then solicitors. None of the questions posed in that letter of instruction request Dr Royston to address the issue of deduced effect under paragraph 6 of Schedule 1. Notwithstanding that, Dr Royston, in his lengthy report, rehearsed, conscientiously, the history of the Claimant’s illnesses – in particular, her mental condition – as recorded in interview with her and her husband and also reviewed the record of her treatment from documentation provided by her general practitioner and from other medical records. In particular, he recorded the fact that, in so far as it was relevant for this part of the case, from February 2006 the Claimant had been receiving counselling. She had also been receiving medication which, from the records, was limited to 10mg per night of amitriptyline, which is well below the dose that would be effective for depression, (75mg minimum) but which is frequently used to help with sleep onset and which appeared to Dr Royston to have had some effect on helping her insomnia. At paragraph 4.28 of the report Dr Royston said as follows:
“I also note she has had treatment without which she would, on the balance of probabilities, have functioned even more poorly. This includes help with sleep, Amitriptyline, and regular supportive counselling.”
[11]It is common ground between the parties that, as a matter of law, counselling can, in an appropriate case, amount to medical treatment for the purposes of paragraph 6 of Schedule 1. The Tribunal, at paragraph 246 of its decision, expressing its consideration of Dr Royston’s evidence, amongst other things, said as follows:
“He considered that effectively the Claimant had been unmedicated, for, although she had been prescribed amitriptyline, this was at a daily dosage of 10mg, whereas the effective dose of treatment for depression was a minimum of 75mg. It appeared that it had been granted more as an assistance with sleep because it has a sedative side effect.”
[12]Mr Downey, who appeared for the Respondent before the Employment Tribunal, frankly and helpfully indicated that that paragraph not only derived from the contents of Dr Royston’s report, in particular the amount of the dose of amitriptyline, but also from oral evidence given by Dr Royston in response to questioning by the Chair of the Tribunal panel. The Employment Judge had specifically raised, according to Mr Downey, with Dr Royston the question of the applicability in this case of paragraph 6(1) of Schedule 1 of the DDA – in other words, the question of deduced effect – and his questioning of Dr Royston in respect of that issue appears to have been limited to obtaining his opinion on the pharmaceutical treatment that she was receiving and whether that could, in the words of paragraph 246, amount to medication, and got the answer that it could not.[13]The Tribunal itself having raised the issue of paragraph 6 of Schedule 1, in our judgement, pursuant to its inquisitorial role, this issue was foursquare before it, even though it may only have been tangentially mentioned in the second ET1 and even though the then‑instructed legal representatives on behalf of the Claimant do not seem to have been aware of the possibility of that argument being available. In our judgment, however, on the basis of Dr Royston’s evidence, at 4.28 of his report, which was not in any way challenged as inaccurate, paragraph 6 of schedule 1 was in play, as the Employment Judge realised it might be. In particular, Dr Royston had identified the relevant treatment as being regular supportive counselling, not the limited pharmaceutical medication, which was prescribed only to help with sleep. Dr Royston expressed the opinion that, without that treatment, she would, on the balance of probabilities, have functioned even more poorly. In the context of a decision on whether the Claimant suffered a disability under the meaning of the Act, judged against the criterion of it affecting her mobility on the basis of the workplace phobia to which we have referred, in our judgment it was an error of law for the Tribunal, having raised the issue, to fail to appreciate that the evidence of Dr Royston in respect of treatment in the form of supportive counselling was as relevant to the paragraph 6 issue as was the question of medication, its nature and quantity.[14]In our judgment, therefore, the Employment Tribunal erred in failing to consider the paragraph 6 of Schedule 1 issue. Given its finely balanced decision in respect of disability on this basis, it is at least possible that, had they considered that issue on that basis, having regard to Dr Royston’s evidence, the balance might have been tipped so that she satisfied the statutory criterion. Therefore, in the normal course of events, we would have been considering quashing this element of the decision and remitting the case for this limited issue to be considered and determined. Whether it would be remitted to the same Tribunal, or a different one, would have been a matter for discussion.[15]However, Mr Downey has pointed out that the Tribunal was faced with a claim under the DDA in respect of alleged discrimination or detriment arising by reason of her disability. At paragraph 302 of its decision it identified a number of reasonable adjustments that the Claimant complained had not been made. Three of them were specifically said to be by reason of her mental impairment. At paragraph 303 the Tribunal said as follows:
“Even had the Claimant satisfied the Tribunal that the conditions amounting to mental impairment did place her at a disability the Tribunal would still not have upheld any of the first three of those reasonable adjustment claims on the ground that the Claimant had not demonstrated that she was placed at a substantial disadvantage by being required to attend a competitive interview or to apply for vacancies or in the assimilation procedure.”
[16]The Tribunal went on to set out why they found that none of these reasonable adjustments had been established.[17]The claimant was also claiming that her dismissal had been an instance of disability discrimination. The Tribunal made findings to the effect that the dismissal had nothing to do with her alleged disability but was by reason of redundancy and was not unfair. None of these conclusions by the Employment Tribunal are the subject of this appeal, which has been permitted to be advanced only on the limited ground with which we have now dealt. In our judgment, therefore, the point upon which we have concluded that the Employment Tribunal erred as a matter of law was an academic point because, even if the Employment Tribunal had not erred in law as we have identified, and even if, upon a proper consideration of the paragraph 6 of Schedule 1 point, it had concluded that she was disabled within the meaning of the Act, none of her claims for discrimination arising out of such disability would have succeeded.[18]Therefore, the outcome of this appeal has that, although the Claimant has established that there was an error of law on the part of the Employment Tribunal, in fact the appeal has to be dismissed. Costs appeal[19]The second appeal concerns the award of costs. The context of that award of costs is that the proceedings before the Employment Tribunal, which ran, as we have indicated, for 12 or more days, resulted in all the claims of the Claimant being dismissed, save for one in respect of disability discrimination for a physical disability, namely a frozen shoulder, comprising a failure to make a reasonable adjustment by virtue of the provision of aids and adaptations to assist her to work at home. On 22 February 2010 the Employment Tribunal convened to consider two issues. The first was the question of compensation for the disability discrimination that had been found proved and to hear the Respondent’s application for costs. On the remedy, the Tribunal ordered that the Respondent pay compensation in the sum of £2,000 with interest of £311.01. That was on the basis of an analysis of what they had found and applying the well‑known authority of Chief Constable of West Yorkshire Police v Vento (No.2) [2002] IRLR 177 to those findings.[20]Mr Engelman, in relation to the first appeal had sought to argue that paragraph 12 of the remedies decision pointed to the fact that, notwithstanding the conclusions of the Employment Tribunal on the substance of discrimination to which we had referred, it was open to the Employment Tribunal to reconsider the question of remedies having regard to our finding that they had erred in law on the paragraph 6 of Schedule 1 point. In our judgment, that is not a good point, because what was being said at paragraph 12 related to claims of discrimination and not just the single issue of whether she was suffering from a disability.[21]The application for costs was framed by the Respondent in an email sent by a Mr Quill on 15 February 2010. In that email he identified six complaints that, individually and cumulatively, it was said, evidenced that the Claimant, or her representatives, had, in conducting the proceedings, acted unreasonably so as to trigger the discretion to make an award of costs under paragraph 40 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 . Those six points include four discrete complaints: first, that claims for race or sex discrimination that had originally been included were abandoned at the outset of the hearing; second, that the report of Dr Royston had been obtained without permission and presented as a fait accompli at the last minute; third, a witness statement of Ms Yap contained inadmissible material, which the Respondent had to go to a separate hearing to establish was inadmissible, was said to be evidence of a witness whom the Claimant and/or her legal representatives knew in advance would not in any event be attending the Tribunal, thereby making the application to exclude the inadmissible evidence unnecessary; and fourth, it was said that the conduct of the litigation was unreasonable in that a series of offers to settle the case based on “Calderbank” letters on terms ranging from £10,000 in December 2008 to £40,000 in August 2009, and repeated during the hearing in September 2009, had been rejected out of hand. It was said that the Claimant, through her solicitors, made no counter‑proposal other than to reiterate that she was looking for the sum in her schedule, which was of the order of £360,000.[22]Mr Engelman has sought to argue that, in respect of each of these four matters, either: there was no direct costs implication; or that the costs implications were extremely limited; or that the Claimant relied on her representatives and, if they acted improperly in respect of the attendance of a witness, she cannot be blamed for that; or that it cannot be unreasonable conduct, per se, to refuse to accept an offer in a “Calderbank” letter; (although he is obliged to accept from the authorities that such a refusal may be a factor in forming a decision whether conduct of litigation has been unreasonable).[23]The fifth ground relied on by Mr Quill, and relied on by the Respondent, was that the Claimant, alleging that her dismissal was discriminatory, had to establish a case that called for an explanation but persisted in her claim without calling any evidence to support her challenge to the reason for the dismissal. The sixth point, which, in essence, is the nub of the matter, is that the Respondent was faced with an unfocused and extensive Public Interest Disclosure Act claim involving multiple alleged disclosures and multiple alleged detriments. These multiple alleged protected disclosures, gave rise also to discrimination or automatic unfair dismissal claims, which had to be addressed by the Respondent by very substantial disclosure of documents, but was dealt with by the Claimant in a witness statement, which she read, which was in excess of 80 pages long and which formed the bulk of the time devoted to the hearing by the Employment Tribunal over a period of 12 days. The Employment Tribunal in the introduction to its decision, which itself runs to 69 pages and has appended to it a schedule of issues that is 5 pages long, in paragraph 11 records that:
“The Tribunal was presented with 11 lever arch files of documents containing in excess of 3,600 pages. Those documents had been extracted and copied into 2 lever arch files that the Tribunal treated as the core bundle.”
[24]This was the scale of the rebuttal exercise in which it was said the Respondent had to engage to meet the “unfocused and extensive Public Interest Disclosure Act claim”, which was not focussed sufficiently, according to the Employment Tribunal, until written closing submissions at the conclusion of the case, to enable findings to be made.[25]The Employment Tribunal records, in paragraph 32 of its decision on costs, that, in answer to the points made by the Respondent, the Claimant’s answer has been, effectively, that she considered, as did her solicitors, that her claim was well founded. She suggested that she did not receive a fair hearing. The Tribunal say it was not entirely clear whether she was referring to the employer or to the Tribunal, but, whichever it was, her point was that there had not been proper consideration by the Tribunal of some of the points made on her behalf.[26]The Employment Tribunal points out that none of those arguments addressed the specifics of the Respondent’s complaints on costs. The Tribunal understood that the Claimant was not legally represented by that stage, but they say in paragraph 33 as follows:
“[…] the effect of that is that the respondent has put forward a number of points, all of which factually are correct and which lead the tribunal to the conclusion that there has by this claimant been unreasonable conduct of the proceedings.”
[27]Mr Downey has referred us to the case of McPherson v BNP Paribas [2004] EWCA Civ 569 , reported at [2004] IRLR 558 , in which Mummery LJ, giving the lead Judgment in the Court of Appeal, said, in paragraph 30:
“The crucial question is whether, in all the circumstances of the case, the claimant […] has conducted the proceedings unreasonably. It is not whether the [action complained of] is in itself unreasonable.”
[28]In particular, Mummery LJ said at paragraph 40 as follows:
“In my judgement, rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but it is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred.”
[29]There was reference to a number of authorities, and Mummery LJ went on to say:
“[These] are not authority for the proposition that Rule 14(1) limits the Tribunal’s discretion to those costs that are caused by, or attributable to, the unreasonable conduct of the applicant.”
[30]Mr Engelman draws our attention to the well-known authority of Ridehalgh v Horsfield and Anor [1994] Ch 205 , which is a decision of the Court of Appeal in respect of the then Supreme Court Act 1981 in connection with wasted costs orders in general civil litigation. In particular, he refers us to the following passages at page 232F:
“’Unreasonable’ also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather then advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.”
[31]There is a further well‑known passage that pursuing a hopeless case does not of itself amount to a legal representative acting unreasonably. Mr Engelman also referred us to a passage on causation, which, in our judgment, is not relevant by virtue of the different approach in the context of Employment Tribunals identified by Mummery LJ in McPherson at paragraph 40.[32]We have to remember that the Employment Tribunal is the body which hears the case. It has first‑hand knowledge, gained over a large number of days, of the nature of the case as pleaded, the nature of the case as presented, the amount of documentation that has been generated, the amount of evidence that is given, the extent to which that evidence is relevant, or irrelevant, or is in respect of issues that are ultimately withdrawn, or not pursued, or are hopeless. The award of costs is an exercise of the Tribunal’s judicial discretion. It is not to be interfered with lightly. Effectively, it has to be on the basis that the Tribunal was so unreasonable that no Tribunal properly directing itself could have made such an order.[33]In this case, the Tribunal concluded, for the reasons to which we have referred, that the Claimant had conducted the proceedings in a way that was unreasonable. That, in our judgment, included making, and persisting with, claims which generated the extensive response and preparation referred to by the Tribunal when it described the volume of documentation that had been prepared. It also included conduct in not withdrawing claims until the last minute. It included irresponsibly failing, whether herself or her representatives, to keep tabs on witnesses and whether they were going to be available to give evidence, and giving the Tribunal due notice. It included the service, late and without permission, of important expert evidence, and it included failing, sensibly, to consider what, on the face of it, and in the light of the Tribunal’s conclusions, were generous offers for settlement. In our judgment, the Tribunal in this case, for the reason that it has given, cannot be said to have exercised its discretion to come to such a conclusion in any way unlawfully. The conduct to which they referred, and to which we have referred, was, in our judgment, capable of amounting to the unreasonable conduct of the proceedings.[34]The Tribunal went on to consider what order for costs it should make. It had specific regard to the paying party’s ability to pay. It reminded itself of the evidence in respect of her husband’s earnings, her own earnings, the value of their house, the extent to which it was subject to mortgage, the amount of the mortgage repayments, and the nature of other debts owed to family members and to the solicitors. The Tribunal concluded, having had regard to those means, that they were such that they should not prevent a costs order being made. They did take those matters into account because they acknowledged that the Claimant’s finances were limited and would not make it easy for her to pay an order for costs, but they did record that there was capital available to her in the form of her home, against which an order for costs might be secured in due course. They had regard to what appeared to be the amount of a costs award on a full liability basis and considered that it would extend far beyond £10,000.[35]The Tribunal had regard to all these matters, and to the fact that she had succeeded on one part of her claim. It also had regard to the fact that the unreasonable conduct was not just in relation to the hearing, but was also in relation to the preparation for the hearing. It also had regard to the fact that the Claimant, again and again, had made a large number of unspecified allegations, in many cases without pleading a proper factual basis. It had regard to all these mattes in determining what proportion of the Respondent’s costs she should pay. They concluded that it was not appropriate for them to adopt a pound‑for‑pound, mechanistic calculation. What they had to do was to come to an overall conclusion, having regard to their overall finding of unreasonable conduct in the context of the case and having regard to all the relevant matters to which they referred, and to which we have referred. Their conclusion was that the order should be that she should pay 50 per cent of the Respondent’s costs, which would be subject to a detailed assessment unless otherwise agreed.[36]In our judgment, we have been given no material upon which to conclude that such a conclusion was outwith the range of reasonable decisions that were open to this Tribunal. We appreciate that the order for costs is potentially very significant, and we also appreciate that for much of the time covered by this litigation the Claimant had the benefit of legal representation in terms of solicitors and counsel. Obviously, we have no idea as to what instructions were given by her and what advice was being proffered by them. We are aware that the Employment Tribunal made an order for costs in respect of a Claimant who, for long periods of the time governed by the award was the beneficiary of legal representation. In our judgment, however, there is no sensible basis for saying that the decision of the Employment Tribunal in respect of costs was outwith the proper exercise by them of their discretionary powers, having regard to the findings that they made in the original Employment Tribunal decision and in the remedies and costs hearing of 22 February 2010. Conclusion[37]Accordingly, these appeals must be dismissed.