Addaction v Cheema

An Employment Appeal Tribunal should interfere with a costs decision only where the tribunal applied wrong legal principles, omitted a legally required consideration, relied on an irrelevant matter, or reached a conclusion outside the range of reasonable disagreement. Decisions under rule 40 of the Employment Tribunal Rules 2004 involve fact-finding, evaluation and discretion.

A medical opinion that disability legislation is unlikely to apply does not necessarily make a disability claim misconceived or unreasonable. A tribunal may also find substantial practical overlap between unfair dismissal and disability discrimination issues. Where that evaluation is legally available, the EAT must respect it.

Ms Cheema brought claims for unfair dismissal and disability discrimination against Addaction. She withdrew the disability discrimination claim at the start of a pre-hearing review concerning Addaction’s strike-out application. Addaction applied for costs under rule 40 of the Employment Tribunal Rules 2004, arguing that the disability claim was misconceived or unreasonably brought and that its withdrawal was too late.

The Employment Tribunal, Employment Judge Blackwell sitting alone, refused the application on 22 November 2010. It considered the medical evidence, limitation issues, the grievance point and the substantial overlap between the two claims. Addaction appealed against that refusal.

1. The appeal was dismissed. The EAT’s jurisdiction was confined to questions of law. A costs decision under rule 40 involved fact-finding, evaluation and discretion. Intervention was justified only if the tribunal applied wrong legal principles, failed to consider something legally required, treated an irrelevant matter as relevant, or reached a conclusion outside the range reasonably open to it.
2. The Employment Judge had not erred in deciding that the grievance requirements did not make the claim misconceived. Although the EAT considered that the grievances might not have satisfied the guidance in Sadare v London Borough of Lambeth, section 32(2) of the Employment Act 2002 had been repealed before the claim was presented. The transitional provisions in the Employment Act 2008 (Commencement No 1) Regulations, Schedule, Part 1, paragraph 3, did not preserve its effect. The Employment Judge’s conclusion was therefore correct, though reached for the wrong reason.
3. The medical report did not conclusively establish that the disability claim was misconceived or unreasonable. The claim form set out a tenable case that the respondent was a disabled person, having regard to the length of the absence and medically certified stress-related symptoms.
4. The Employment Judge was entitled to regard the discrimination allegations as potentially within time because the alleged process could be evaluated as a continuing act. That was an evaluative conclusion and disclosed no error of law.
5. The finding of substantial overlap between the unfair dismissal and disability discrimination claims was open to the Employment Judge. The dismissal issues involved the claimant’s sickness absence, grievances, medical evidence and alleged breakdown in relations. No separate expert expense had been incurred for the disability issue. The overlap therefore provided a proper basis for refusing costs, including costs said to arise from late withdrawal.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s refusal, dated 22 November 2010, to award Addaction costs. The appeal was dismissed.