Hina v. Customs & Excise [2000] UKEAT 61_00_1005 (10 May 2000)

JUDGMENT PRELIMINARY HEARING © Copyright 2000 APPEARANCES For the Appellant MR S WILSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE NELSON : This is a preliminary hearing in an appeal against three decisions, one an Originating Application under section 146 of the Trade Union Labour Relations (Consolidation) Act 1992, complaining of action short of dismissal. The second, an Originating Application under the Disability Discrimination Act 1995, the preliminary issue heard by the Tribunal being whether or not the Appellant was disabled and thirdly, an application in relation to a refusal to permit the Applicant to attend a Health and Safety course. In their decision of 23 November 1999 the Tribunal unanimously dismissed all three applications. In the grounds and skeleton arguments which Mr Hina on his own behalf put forward, he instanced numerous different matters upon which he sought to appeal. He has, since today, had the advantage of the advice of Mr Wilson of ELAAS who has most helpfully, for the benefit of the Tribunal, put forward the grounds, having clarified and identified them and, in effect, what were numerous grounds had been reduced to four. Those are set out, as identified by Mr Wilson, in the following manner. On the Notice of Appeal at paragraph 6, is the first ground. This is not pursued save in the sense that (which I shall deal with later) further documents are sought. The second ground, which relates also to the conduct short of dismissal, is on the second page, starting with the word "Additionally", the penultimate paragraph. That is not addressed today at all and in the view of the Tribunal rightly not addressed. The third ground relates to the Disability Discrimination Act point which is on the same second page of the Notice of Appeal, starting with the words "Paragraphs 45-57". That is the primary point pursued by Mr Wilson. Then the fourth ground is that set out on the third page of the Notice of Appeal, the second paragraph, starting with the words "Paragraphs 58-65" and that relates to the third claim, namely refusal of permission to attend the Health and Safety course. Mr Wilson addressed us on his primary point first, that relating to what he described and delineated as ground 3 under the Disability Discrimination Act. He started by handing to the court a copy of the report of a psychiatrist, Dr Gilbert Andrews of Lynbrook Priory Hospital, dated 3 November 1999. This report was submitted by the Appellant to the Tribunal after the hearing had been concluded but before their decision had been reached. It was adverted to in the Tribunal decision at paragraph 50 but does not appear, on the face of it, to have been relied upon by them or its contents considered. Mr Wilson submits to us that on its face this document, by a qualified psychiatrist, deals properly and fully with the issues before the Tribunal as to whether or not there was a disability under the Act. For example, at page 7, in setting out its conclusions, it finds that there was an anxiety disorder, psychological trauma, a diagnosis of mixed anxiety and depressive disorder under the international classification 10 F41 2. The psychiatrist also found that the symptoms of which Mr Hina complained caused him disturbance of his normal day-to-day activities and that can be seen on pages 5 and 6 of that report. Having read that and had the opportunity presented to this Tribunal for the first time today, we accept Mr Wilson's submissions to us. On the face of it that document does provide information directed to those points and they are matters which the Tribunal should have considered and did not, and in failing to do so, they failed to act properly. We are satisfied that that is an error of law which is properly arguable and should go to a full hearing.. It is also submitted that too much emphasis was placed on C20 of the guidance which are merely illustrative examples, not exhaustive, in relation to the complaint about lack of concentration. It is also submitted that the Tribunal overlooked the case of Goodwin insofar as it did not consider whether the mere ability to carry a particular function did not of itself mean that there was no impairment. We are also satisfied that those arguments relative to ground 3 under the Disability Discrimination Act are properly arguable and should go to a full hearing. A consequential point arises from that, namely as to whether or not any impairment that might be found would be substantial. That is not an error in itself, it is only an error that follows if it be found that the Tribunal were wrong in disregarding Dr Andrews' report and its findings. So in relation to the third ground under the Disability Discrimination Act we are satisfied that those matters are properly arguable. Mr Wilson then went on to submit that in relation to ground 4, where the Tribunal found that the claim had not been made in time, that Mr Hina was able to rely on a document of 4 November which indicated that it was that date from which time should run, rather than the earlier date the Employment Tribunal took. He has not brought that document. There may be another one as well, but those two particular documents he has not brought today, and what Mr Wilson asks is that there should be an adjournment of this aspect to the first open date. We have asked that Mr Wilson himself considers that and gives Mr Hina guidance as to whether it is relevant and proper for him to continue to pursue that matter in relation to the third claim. We do adjourn that matter and we make that order, namely that Mr Hina obtains the documents, seeks the advice of Mr Wilson and then acts accordingly on the basis of that advice. Lastly in relation to ground 1, the conduct short of dismissal, no substantive error of law is submitted in relation to that but it is said that there may also be documents which were before the Tribunal not taken into account by them to show some campaign by the Respondent against Mr Hina. We, having considered the matter, are not satisfied that this is a request that ought to be granted, namely that this also be adjourned. This was dealt with fully and properly by the Tribunal and is not a matter which it is appropriate to submit there is either any error of law or that the matter should be further reopened in order to permit consideration of that. We are satisfied that that would not be an appropriate action to take. In other words ground 3 submitted by Mr Wilson is properly arguable and in relation to ground 4 there will be an adjournment of this aspect to the first open date on the basis indicated. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII