Sud v London Borough Of Ealing

Where evidence shows that counselling or other treatment would probably have made an impairment less severe, an Employment Tribunal determining disability must consider the deduced effect required by paragraph 6 of Schedule 1 to the Disability Discrimination Act. Failure to do so may be an error of law.

That error will not justify remittal where unchallenged findings mean that no discrimination claim could succeed even if disability were established. An Employment Tribunal may award costs for unreasonable conduct assessed in the round. It need not identify costs caused by each instance of unreasonable conduct. An appellate court will not interfere unless the discretionary decision was outside the range of reasonable decisions.

The claimant appealed two decisions of the Employment Tribunal at Watford. The Tribunal had dismissed her claims, save for a reasonable-adjustment claim concerning her physical disability. It rejected her contention that her mental condition amounted to a disability, and later ordered her to pay 50 per cent of the respondent's costs.

Permission was confined to whether the Tribunal had failed to consider the effect of treatment under paragraph 6 of Schedule 1 to the Disability Discrimination Act, and, if that appeal succeeded, whether the costs order should be set aside. The central issues were whether supportive counselling required a deduced-effects assessment and whether the costs order disclosed an error of law.

1. Appeals dismissed. The Employment Tribunal erred in law by failing to consider the effect of supportive counselling under paragraph 6 of Schedule 1 to the Disability Discrimination Act. The evidence was that, without counselling, the claimant would probably have functioned more poorly. That evidence was relevant to whether her workplace phobia had a substantial adverse effect on normal day-to-day mobility.

2. The error was academic. The Tribunal had made unchallenged alternative findings that, even if the claimant's mental condition made her disabled, none of the reasonable adjustments relied on would have succeeded because she had not shown substantial disadvantage. It had also found that her dismissal was by reason of redundancy and not disability. A remittal on disability status could therefore produce no effective relief.

3. The costs appeal also failed. Applying McPherson v BNP Paribas [2004] EWCA Civ 569, the relevant question was whether, in all the circumstances, the claimant had conducted the proceedings unreasonably. The Tribunal was not required to establish a direct causal link between each item of unreasonable conduct and particular costs.

4. The Tribunal was entitled to find unreasonable conduct from the unfocused and extensive litigation, late withdrawal of claims, late unauthorised expert evidence, witness-management failures, and failure sensibly to consider settlement offers. It had considered the claimant's means, her limited success, and the overall conduct of preparation and hearing. Its order for 50 per cent of the respondent's costs was within the range of reasonable discretionary decisions.

• Employment Appeal Tribunal: dismissed the appeals. It identified an academic error concerning paragraph 6 of Schedule 1 to the Disability Discrimination Act and upheld the costs order.

• Employment Tribunal, Watford: dismissed all claims except a reasonable-adjustment claim relating to physical disability; later awarded the claimant compensation and ordered her to pay 50 per cent of the respondent's costs.