Flattley v Cleveland Police Authority UKEATPA/0986/12/LA

Subjects: Victimisation – Case Management – Medical Evidence – Definition of Disability – Substantial adverse effect – Restricted Reporting Order

After an extraordinary 12 case management hearings this case came on for hearing. C's claim for disability discrimination was dismissed at a full hearing. Her complaints of unfair dismissal and victimisation were upheld. C's points on appeal included: (1) that the ET had wrongly refused an application to introduce expert medical evidence on day 3 of the hearing; (2) that the ET had wrongly decided that C was not disabled; (3) that the ET had only found 1 of the 3 alleged acts of victimisation to be substantiated. R appealed the finding that it had victimised C.

Facts

C was a civilian employed by R as an alarms administrator who developed a mild anxiety disorder. C contended that she was disabled under the Disability Discrimination Act 1995. C had raised a grievance about her treatment in 2006 and had made a claim in 2008. C was due to return to work after a period of sickness absence on 26 Mar 2009. However, 3 days earlier her line managers submitted a devastating memo complaining about her. She was suspended by her line manager.

The memo was the first instance of victimisation complained about. The second was her suspension by her manager on 26 Mar 2009. The final act was her dismissal following a disciplinary hearing and the rejection of various grievances that she had raised during the course of her employment on 1 February 2010.

Held

The EAT (Judge McMullen QC) decided that the ET had not erred refusing an adjournment for C to provide additional medical evidence. The tribunal had noted that no there was no explanation as to why fresh medical evidence was required on day 3. By that stage the joint expert had given evidence at this stage and the case was ready for a hearing without the new medical evidence. This was a case management decisions and there was no basis for overturning the it. It's decision to continue was unimpeachable.

The EAT also upheld the ET's finding that C was not disabled. The Tribunal had evidence from the joint expert that there was a mental impairment but at no times was there a condition that had a substantial effect on C’s day-to-day activities. The ET's finding was one of fact and the appeal did not involve a question of law. The EAT did not accept a perversity challenge.

The EAT refused C's appeals in respect of her victimisation claims. The EAT referred to the series of questions in HM Prison Service v Ibimidun [2008] IRLR 940. C had failed to satisfy the EAT that she was treated differently from a person who had not done the protected acts. Someone who had behaved as C had would have been the subject of the memo and would have been dismissed even if she had not done a protected act.

Finally, the EAT allowed R's appeal In respect of the the suspension. Firstly the findings that the ET made in respect of the suspension had not been matters which were properly before them (Chapman v Simon [1993] EWCA Civ 37). Secondly the ET had not properly considered the reasons for the suspension. It was the manager's submission of the memo shortly before C’s return to work that had caused the suspension and not the fact that she had made discrimination complaints.

Comment

This case is a useful reminder of the ET's broad discretion in respect of case management discussions (the EAT followed the approach in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298). A tribunal exercising its case management powers will not be lightly overturned on appeal.

The EAT's decision on victimisation is a pragmatic one. The EAT sets out the three stage test in Ibimidun (see para.20) which encapsulates the correct general approach (1) did C do a protected act? (2) was he treated less favourably than others who did not do the act? (3) was he less favourably treated because he did the act? Because C had failed to show less favourable treatment she did not get to the third stage of the test. The decision in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 was relevant where the comparison exercise showed that there was less favourable treatment. Once that stage was reached the first step is to look at all the relevant circumstances, the second to look at whether there is less favourable treatment “in those circumstances” and the third ingredient is to examine “the reason why” treatment has occurred.

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2013/0986_12_2409.html