Sud v London Borough of Ealing

An error in determining whether an employee has a disability does not require remittal where the tribunal’s unchallenged findings make the discrimination claims bound to fail even if disability were established. The appellate question is whether the result was plainly and unarguably right despite the error.

Under the costs jurisdiction, an employment tribunal must identify unreasonable conduct and its effects. It may assess the whole course of proceedings broadly. It need not allocate particular costs to each item of conduct or undertake a minute causal analysis.

The appellant brought claims arising from the termination of her employment, including unfair dismissal, protected-disclosure detriment and disability discrimination. The Employment Tribunal rejected all material claims save a limited reasonable-adjustment claim concerning aids and adaptations for her physical disability. It also ordered her to pay 50% of the respondent’s costs.

The Employment Appeal Tribunal held that the tribunal had erred by failing to consider the possible deduced effect of supportive counselling under Schedule 1, paragraph 6 of the Disability Discrimination Act 1995. It nevertheless dismissed the appeal because none of the disability-discrimination claims based on mental impairment could have succeeded. It also upheld the costs order.

The appellant appealed on the questions whether the case should have been remitted and whether the costs order was lawful.

Fulford LJ, with whom Patten and Maurice Kay LJJ agreed, dismissed both appeals.

1. The court accepted that the Employment Appeal Tribunal had correctly identified an error of law. Evidence that the appellant received supportive counselling was relevant to the deduced-effect inquiry under Schedule 1, paragraph 6 of the Disability Discrimination Act 1995. The tribunal had confined its inquiry to medication and had not considered the counselling evidence.

2. Remittal was nevertheless unnecessary. Applying Dobie, the question was whether the tribunal’s conclusion was plainly and unarguably right despite the misdirection. The tribunal’s findings showed that the respondent’s failure to secure alternative employment resulted from matters unrelated to disability, particularly a recruitment freeze and the appellant’s late participation in redeployment. Its findings also defeated the claims concerning training and supervision. Those conclusions would be unchanged if mental impairment were established. The error was therefore academic and the Employment Appeal Tribunal was entitled not to remit.

3. Under Schedule 1, Rule 40 of the Employment Tribunals Regulations (Constitution & Rules of Procedure) 2004, costs remain exceptional, but the tribunal had identified several forms of unreasonable conduct. These included an unfocused and extensive protected-disclosure claim, late withdrawal of unsupported claims, late and unauthorised expert evidence, unnecessary witness-related expenditure, and unreasonable rejection of settlement offers.

4. The tribunal was entitled to assess the overall course of conduct broadly. It did not need to establish a precise causal link between each item of unreasonable conduct and particular costs. Its reasons sufficiently identified the conduct and its effects, and the 50% order fell within its discretion. The appeals were dismissed.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal from the Employment Appeal Tribunal and upheld the refusal to remit and the 50% costs order. [2013] EWCA Civ 949
• Employment Appeal Tribunal: On 29 May 2012, dismissed the appeal. It found an error concerning the deduced effect of treatment, but held that it could not affect the outcome and upheld the costs order.
• Employment Tribunal: On 14 December 2009, dismissed the material claims save a limited reasonable-adjustment claim relating to the physical disability. On 22 February 2010, awarded compensation of £2,000 and ordered the appellant to pay 50% of the respondent’s costs.