EF v ST (Practice and Procedure) [2016] UKEAT 0256_15_1205

EAT
EF v ST (Practice and Procedure)
[2016] UKEAT 0256_15_1205 · 2016-05-12
[1]This case has been proceeding in the Leeds Employment Tribunal. The parties are EF, the Claimant, and ST, the Respondent. I shall refer to them as Claimant and Respondent respectively. Background[2]The Claimant, who is disabled by virtue of her learning difficulties, commenced employment in the Respondent’s child nursery in April 2013. She had previously worked there as a volunteer. The nursery principal was Mrs C. In April 2014 the Claimant sought but was refused a week’s holiday by Mrs C. However, she took the time off anyway. That prompted a formal letter dated 15 April summoning her to a disciplinary hearing on 23 April. On that date the Claimant attended with her mother, who represents her in these proceedings, and a friend, Mr W. In the event the disciplinary hearing did not take place that day. A full and frank exchange of views took place at the nursery between the Claimant’s mother and Mr W on the one side and Mrs C and her husband, Mr C, on the other. That incident was followed by a grievance raised by the Claimant and in due course by the Claimant’s resignation on 29 October 2014. These Proceedings[3]The Claimant brought various complaints in the Employment Tribunal against the Respondent. The claims were resisted and the matter considered at a case management discussion held before Employment Judge Maidment on 20 October 2014. A copy of the CMD summary, dated 29 October, was not in the EAT bundle prepared for this hearing, but I called for a copy, a course that was communicated to the parties. The summary identifies the following causes of action: failure to make reasonable adjustments, a complaint under section 15 of the Equality Act 2010 of disability related disability discrimination (to use the old Disability Discrimination Act 1995 expression), and breach of contract. A claim of unfair dismissal was struck out due to the Claimant having insufficient continuous service.[4]The matter came on for substantive hearing before an Employment Tribunal chaired by Employment Judge Cox on 25 and 26 February 2015. By a Reserved Judgment with Reasons dated 14 May that Tribunal dismissed all claims save for one complaint of failure to make reasonable adjustments, focusing on the sending of the letter dated 15 April 2014 summoning the Claimant to a disciplinary hearing (see Reasons, paragraphs 14 to 16). At a subsequent remedy hearing held on 10 June 2015 the Tribunal awarded the Claimant £2,000 in respect of injury to feelings, relating to the single failure by the Respondent to make reasonable adjustments, together with interest. The Remedy Judgment with Reasons with promulgated on 22 July 2015. The Appeals[5]Against both the Liability and Remedy Judgments the Claimant appealed, and against the single finding of failure to make reasonable adjustments the Respondent appealed. Those appeals were initially considered by HHJ Shanks on the paper sift. He allowed the Claimant’s appeals to proceed on paragraph 7 of her composite appeals only and allowed the Respondent’s appeal to proceed on the liability point adverse to them. The Claimant made an application for permission to proceed with her remaining grounds of appeal rejected by HHJ Shanks. At a Rule 3(10) oral hearing held on 22 January 2016 HHJ Eady QC dismissed the permission application save that paragraphs 4 and 5 of the Claimant’s grounds of appeal were added to paragraph 7. Further, the question of remedy was left open depending on the outcome of the Claimant’s liability appeal. The Respondent’s Appeal[6]In advancing the appeal Ms Reece, who appears today on behalf of the Respondent but did not appear below, raises two grounds. I shall take them in reverse order. First, the natural justice point, ground 2: it is here argued that the Claimant did not take the point that the sending of the letter of 15 April 2014 amounted to a failure to make a reasonable adjustment. It is well settled that an Employment Tribunal should determine only those issues that are before them (see Chapman v Simon [1994] IRLR 124 ). However, how is that rule to be applied in practice? I drew Ms Reece’s attention to the Court of Appeal decision in London Borough of Southwark v Afolabi [2003] ICR 800 . There, a question arose as to whether a particular issue had been raised before the Employment Tribunal. By a majority, Peter Gibson LJ - who gave the leading Judgment in Chapman v Simon - dissenting, the court held that the issue had been sufficiently raised for it to be determined by the Tribunal.[7]Turning to the present case, I referred to Employment Judge Maidment’s identification of the issues at the Preliminary Hearing held on 20 October 2014. At paragraph 8 he said this:
“8. From the narrative grounds of complaint the Tribunal had discerned that the claimant’s primary disability discrimination complaint fell most obviously to be considered as one alleging a failure to make reasonable adjustments pursuant to section 20 of the Equality Act 2010. In this regard the provision criterion or practice to be relied upon would be the respondent’s conduct of disciplinary and grievance proceedings which it would be said the claimant was disadvantaged by due to her communication difficulties and difficulties in processing information together with her having to deal with a pressurised situation where she might be over willing to accept any comments put to her by others. …”
[8]He then continues with the question of who should accompany the Claimant at any disciplinary meeting. In my view, and Ms Reece does not argue to the contrary, that formulation sufficiently identified the particular issue on which the Respondent lost, in that it covered the sending of the letter inviting her to a disciplinary hearing.[9]Alternatively, Ms Reece raises a substantive challenge to the finding made adverse to the Respondent, ground 1. Her complaint is that the Tribunal impermissibly substituted an informal oral warning for the formal letter calling the Claimant to a disciplinary hearing. Whilst the letter is couched in terms regularly seen in disciplinary cases, this Tribunal was astute to identify the particular disability suffered by this Claimant and the adverse effect of receiving the letter on her compared with an employee who did not suffer from the Claimant’s condition. That was, in my judgment, a finding that was permissibly open to the Tribunal. In these circumstances, the Respondent’s appeal fails and is dismissed. The Claimant’s Appeals[10]Before me the Claimant relies on written submissions prepared by her mother. She does not appear and is not represented this morning. The complaint at paragraphs 4, 5 and 7 of the Claimant’s composite Notice of Appeal is that the Tribunal was wrong to limit the finding of a failure to make reasonable adjustments to the single matter of the letter of 15 April 2014. There is also a challenge to the finding of no breach of the implied term of trust and confidence and a contention that the Tribunal failed to deal with the issue of bullying during the employment. I accept Ms Reece’s submission, first, that there is no freestanding complaint of bullying justiciable before the Employment Tribunal. It must be linked to a protected characteristic; here, disability. The finding of no breach of contract is, in my view, unassailable on the facts found.[11]Returning to the bullying question, it seems to me that the complaints of bad conduct on the part of the Respondent were comprehensively rejected on the facts by the Tribunal (see, particularly, paragraphs 33 and 34). The further allegations of failure to make reasonable adjustments were considered by the Tribunal and, again, permissibly rejected on the facts. In these circumstances, the Claimant’s appeals also fail and are dismissed.