Appeal No. EAT/789/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 December 2000

Before
HIS HONOUR JUDGE D PUGSLEY
MRS D M PALMER
MR G H WRIGHT MBE

ROYAL COLLEGE OF NURSING	APPELLANT

MRS M P EHDAIE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR IAN SCOTT
(of Counsel)
Instructed by:
Messrs Charles Russell
Solicitors
8-10 New Fetter Lane
London EC4A IRS	

JUDGE D PUGSLEY

1	This is a preliminary hearing to identify whether or not there are any arguable grounds of appeal from the decision of this Employment Tribunal, sitting in Exeter.  The decision reached by the Tribunal was that the Applicant was unfairly dismissed, and was in breach of Section 6 of the Disability Discrimination Act 1995.  

2	The Tribunal heard evidence and argument on 28, 29 and 30 March, and reserved judgment, meeting again on 25 April.  The decision runs into no less than 12 closely typed pages, and we are bound to say that the original Skeleton Argument, drafted by Counsel, mirrors the length of the decision, and runs into 16 pages, but not so closely typed. 

3	We have now had the opportunity of Mr Scott putting before us actual grounds of appeal, and we have to say those grounds of appeal are very much more terse in their response - Ground 1:

“1	The Tribunal misdirected itself as to the meaning of “arrangements” under section 6(1) of the 1995 Disability Discrimination Act in finding as it did at paragraph 32 of its Reasons that the disability of the Applicant resulted from a requirement for the applicant to work in an environment which she found unfriendly because of the conduct of her line manager, which had influenced the behaviour of her work colleagues against her and that the arrangements under which she worked were made by the employer.”

4	There is then a further ground alleged under that an issue as to “Reasonable Adjustments”,  and the fact that:
“4     The Tribunal gives no reasons for its decision that failures which it had identified were not justified.”
The final matter is that:
“5.  The Tribunal misdirected itself as to the meaning of section 1 of the Disability Discrimination Act in deciding that the Respondent was disabled from December 1997.”

5	We ought to say that we are somewhat concerned about that last ground, because we note that there was an earlier Tribunal decision which considered the question of disability, and its concluding statement in paragraph 23 was:
“23   In conclusion we have no doubt that the applicant is and was at all material times disabled within the meaning of the Act”.

That was a decision which was not subject to any appeal, but we having considered the matter, have decided that it is right that leave should be given; that there are matters of substance and real argument that the present Notice of Appeal We would wish to emphasise we say the matters are arguable.  We mean that arguments can be presented on real and not synthetic issues.  

6	The second basis is the issue on constructive dismissal.  We note that the ground of appeal, in its form, refers back to the Skeleton Argument.  On its findings of fact, and the evidence the Tribunal misdirected itself and conclude the Appellant fundamentally breached the Respondent’s contract of employment.  That is justified by a detailed analysis of the evidence in the Skeleton Argument from page 5 onwards.  We have come to the view that this is arguable. 

7	May we say that - and we do not mean this in a disparaging or critical way - we have found the initial approach which was that the grounds of appeal were subsumed within the wider Skeleton Argument, meant that one did have some difficulty in following the essential kernel.  We give leave for the grounds of appeal, that have now been preferred, to be amended and make the standard direction as to Skeleton Arguments.  

We consider this is a B category case; estimate of 1 day and we make the usual order for providing Skeleton Arguments.  We do not agree with the making of a global order for the Chairman’s Notes.  The parties should discuss what notes are relevant and if possible make a joint application.