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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hill v. Clacton Family Trust Ltd [2003] UKEAT 696_03_1508 (15 August 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/696_03_1508.html Cite as: [2003] UKEAT 696_03_1508, [2003] UKEAT 696_3_1508

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APPEARANCES

 

For the Appellant	Mr R Hill Appointee


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case will go to a full hearing, but I have a proposal to make which is that the ET should be given an opportunity to look at the documents produced today. I will stay any further steps, once I have ordered it to go to a full hearing, half a day, Category C, and invite you to apply to the Employment Tribunal for a review, albeit out of time on the basis of your argument. Put your argument and all your documents before the ET and invite the Chairman to consider the documents, and in the light of that to decide whether or not to hold a review. What concerns me is that the Employment Tribunal took it upon itself to exclude the materials and it did not give an opportunity to the parties to make submissions about them, and never saw the documents. I will stay further proceedings for twenty one days so that you can make an application.
2. I will give the standard directions, but they will all be stayed pending an application to the Employment Tribunal. So you are going to have to make an application for a review, in writing, enclosing all the material and using exactly my formulation which is upon the hearing of this Rule 3(10) application, this is to go forward to a full hearing, but be stayed pending an application, albeit out of time, to the Tribunal for it to consider the materials which you put forward, and to consider making a review.
3. An application has been made to me by Mr Hill on behalf of the Applicant, pursuant to Rule 3(10) of the EAT Rules. The Registrar has determined that the appeal raises no point which would give the EAT jurisdiction. I have decided that this matter should go forward. I have the advantage of seeing more papers than were available to the judge who did the sift and made the recommendation that the Registrar should exercise her determination in this way, and of the Registrar who similarly had no access to all the papers I have. I have read carefully all the relevant papers, and I have also been shown the bundle of documents which was available before the Employment Tribunal, and the application for judicial review of the Decision.
4. I make four short points which may assist in the further advancement of this case:

(1) Although suggested by a Consultant on behalf of the Respondent that there may be some factual weaknesses in the Applicant's account of the tragedy which occurred at Clacton in August 2000 and what the Applicant saw, I am not entirely certain why that played a part in the determination by the Tribunal of the issue as to whether the Applicant was disabled. It seems to me, from a very preliminary view, that the sole issue was to determine whether she was a disabled person within the meaning of section 1 of the DDA, and not to investigate as a matter of fact the causation of what was described in her case as post-traumatic stress disorder.

(2) Mr Hill's central point is that the Secretary of State has determined through the appeals service that the Applicant was disabled as a result of PTSD, stemming from that tragedy. With some force, Mr Hill contends that there is an inconsistency in the determination by a Tribunal that she was not so disabled. It will be recalled that when the DDA 1995 was passed, those persons who were registered as disabled at the time of its coming into effect were deemed to be disabled for the purposes of the Act - see paragraph 7 of Schedule 1 to the 1995 Act. Regulations could be made for further deeming of such persons, but they apparently have not been, for there is no mention of them in the Disability Discrimination Meaning of Disability Regulations 1996. In my judgment, a question mark is certainly raised over the relationship between the status of a disabled person for the purposes of claiming social security benefits, (I have had sight of the decision of an Appeal Tribunal, dated 6 December 2002) and a disabled person qualifying under the statutory test of the 1995 Act.

(3) At the heart of the Applicant's case is the contention that as a matter of fact she is disabled. I have pointed out to Mr Hill that unless it can be said that the finding by the Tribunal was perverse, that is that there was no evidence to support that finding, the EAT would have no jurisdiction. Nevertheless, at this stage, I do not have a power to be selective in the matters which will go forward to a full hearing,

(4) It is also contended that there was inequality of arms before the Employment Tribunal. I have indicated that I myself am unimpressed by that argument, since the Applicant received the advice of Counsel before the hearing, and was represented on at least one day by Counsel, and I am happy to discuss that further with Mr Hill.

5. Mr Hill has accepted my preliminary view that the point about inequality of arms is not one which stands any prospect of success, and he withdraws that. The Notice of Appeal will exclude the reference to that disadvantage which he says his daughter suffered. In my view, a wise decision, clearing the path to an unobstructed view by the Employment Appeal Tribunal of the central issues of the case.
6. Mr Hill also heard my view about the issues of fact. If there is a simple answer to the disability point, the apparent conflict between the two, and it may well be that there is a different test applied in each of the statutes, then all he is left with is a challenge that the Tribunal was perverse. I do not think that is very strong, but in any event that is a matter for the Tribunal.
7. Mr Hill told me would not like to persist in the argument on the basis that Mr Crome was extremely impartial, but he was upset at the extent that when he had made requests for various independent specialists who had no connection with the Respondent and that request was refused by Mr Crome. Well, let us get some perspective about this. The criticism and the judicial review is about Mr Crome, but actually it is the Tribunal is it not? Ultimately this case went before a full Tribunal. I cannot stop Mr Hill maintaining the claim that the Tribunal acted perversely, in that on the evidence that it had, it had to balance it and choose which one. I do not think that videotape has a great deal of relevance, and it may well be that it could be taken at the full hearing, but you have to bear in mind that the Applicant won unfair dismissal in this case.
8. Mr Hill is complaining about para 33 of the Decision. There has not been an award, but Mr Crome has already indicated in the wording of his Decision of 7 May that the award would be in hundreds, as opposed to thousands, There is yet to be a hearing on this matter on 23 October. I cannot get involved in that. You are not appealing an award because there has not been one
9. The critical issue in this case is whether, on 20 February, the action taken against the Applicant was on the grounds of her disability, because she had taken ecstasy overdoses because she had PTSD; whether the PTSD drove her to it is the issue.
10. I will issue directions for further conduct of this case. Mr Hill indicated that he may not pursue the central dispute about the nature of the evidence, but I am going to take no further steps about that, so Mr Hill may consider what is being said, and can take some advice. It may well be that if there is nothing in the point about the Secretary of State's decision, because it is a different standard, a different test, and all we are left with is a finding of fact that the Employment Tribunal preferred medical evidence coming from the employers rather than the Applicant, and that would therefore not be a legal ground for appeal.