Sud v London Borough of Ealing

The Court of Appeal dismissed the appellant's appeal against the Employment Appeal Tribunal's decisions not to remit the case to the Employment Tribunal and to uphold a 50% costs order. The appeal raised two narrow issues: whether the Employment Tribunal had erred in failing to consider the deduced effect of treatment under schedule 1, paragraph 6 of the Disability Discrimination Act 1995 and whether the costs order should be set aside. The EAT found there had been an error of law in relation to the deduced effect point but considered that error to be academic because, on the tribunal's findings of fact, none of the disability discrimination claims reliant on a mental impairment would have succeeded. The Court of Appeal agreed, applying the Dobie remit principle and concluding that even if the tribunal had made an additional finding of mental disability the outcome on the discrimination claims would not have changed. The Court also held that the tribunal had acted within its broad discretion under Rule 40 of the Employment Tribunal Rules to order costs against the claimant for unreasonable conduct and that the 50% order was not plainly wrong.

The appellant, employed since 1986 by the respondent local authority, brought Employment Tribunal claims including unfair dismissal, detriment for protected disclosures, and various discrimination claims (disability-related, direct disability discrimination, victimisation and others). The Employment Tribunal hearing (September 2009) dismissed most claims but found one limited reasonable-adjustment failure in relation to aids and adaptations to enable home working for the appellant's physical disability (a frozen shoulder). The tribunal also made a costs order on 22 February 2010 that the appellant should pay 50% of the respondent's costs.

Procedural posture:

• The EAT gave permission on a preliminary basis to consider two issues: the schedule 1 paragraph 6 (deduced effect) point and the costs order; on 29 May 2012 the EAT dismissed the appellant's appeal, holding that although the tribunal had erred in failing to consider the possible deduced effect of non-medication treatment (supportive counselling) that error was academic because none of the discrimination claims dependent upon mental impairment would have succeeded on the tribunal's factual findings.
• The appellant obtained renewed leave to appeal to the Court of Appeal to challenge the EAT's refusal to remit and its upholding of the costs order; the Court of Appeal delivered judgment on 30 July 2013.

Issues framed by the court:

• Whether the tribunal's failure properly to take into account treatment (supportive counselling) and therefore the deduced effect under schedule 1, paragraph 6 DDA amounted to a legal error that required remittal to the tribunal.
• Whether the Employment Tribunal had erred in ordering the claimant to pay 50% of the respondent's costs under Rule 40 of the Employment Tribunal Rules of Procedure.

Court's reasoning (concise):

• On remittal: the Court applied the established appellate approach (Dobie and authorities) that an appellate tribunal should remit unless the impugned conclusion is plainly and unarguably right despite the misdirection. The Court concluded that even if the tribunal had found the claimant disabled by reason of mental impairment, the factual findings (re redundancy, recruitment freeze, late engagement with redeployment, lack of comparator evidence, and specific factual findings on training and supervision) meant that none of the discrimination claims dependent on mental impairment would have succeeded. Remittal was therefore unnecessary.
• On costs: the Court reviewed the tribunal's identification of multiple items of unreasonable conduct (unfocused and extensive Public Interest Disclosure claim, late withdrawal of claims, late service of expert evidence, pursuit of claims without credible supporting evidence, pursuit of unrealistic settlement expectations, and unnecessary procedural steps leading to additional work for the respondent). It concluded that the tribunal had properly applied Rule 40, adopted a broad-brush approach consistent with authority (including Yerrakalva and Lodwick), identified the unreasonable conduct and its effects, and had not acted outside its discretion in ordering the claimant to pay 50% of costs.

Result: the Court of Appeal dismissed the appeals.

Appeal dismissed. The Court of Appeal held that although the Employment Tribunal erred in not addressing the deduced effect (schedule 1, paragraph 6 DDA) fully, that error was academic because, on the tribunal's factual findings, the disability discrimination claims that depended on a mental impairment would not have succeeded; and the tribunal had not erred in principle or acted unreasonably in ordering the claimant to pay 50% of the respondent's costs under the Employment Tribunal rules.

Employment Tribunal (Watford) decisions: substantive judgment 14 December 2009 (most claims dismissed except limited reasonable-adjustment claim); remedies and costs hearing 22 February 2010 (award of £2,000 and order the claimant to pay 50% of respondent's costs). Permission to appeal to the Employment Appeal Tribunal limited to two issues granted at a preliminary hearing on 1 February 2012; EAT (Wilkie J, Mr Bleiman and Mr Ezekiel) dismissed the appeal on 29 May 2012 (UKEAT/0482/11/LA & UKEAT/0483/11/LA). Renewed leave to appeal to the Court of Appeal granted by Mummery LJ on 17 January 2013; Court of Appeal judgment dismissing the appeal delivered 30 July 2013 ([2013] EWCA Civ 949).