K Badham v Jaguar Land Rover Ltd

An appellant who wishes to adopt arguable errors identified in an EAT rule 3(7) determination should generally apply promptly to amend the grounds. Amendment may be allowed at the hearing where the interests of justice require it.

Issue estoppel is confined to the particular earlier claim or defence. It may arise from facts fundamental and necessary to that determination, including the legal quality of those facts, but not from intermediate steps in the reasoning. A necessary finding that an employer’s decision was wholly unrelated to health could not be reopened by alleging a different disability. Alternatively, the tribunal did not misapply section 6 of the Equality Act 2010 when it found no substantial day-to-day effect from mental impairment at the material date.

Mr Badham, an employee of Jaguar Land Rover Ltd, challenged the employer’s refusal on 7 March 2022 to fund further cognitive behavioural therapy (CBT). In a second Employment Tribunal claim, he alleged that the refusal was discriminatory because of irritable bowel syndrome and a mental health impairment. At a preliminary hearing on 10 July 2024, Employment Judge Hena found that he had not established a mental impairment disability at the material date.

While the appeal was pending, an Employment Tribunal dismissed the claims based on irritable bowel syndrome and found that the refusal to fund CBT was for reasons unrelated to Mr Badham’s health. The employer argued that this finding created an issue estoppel, making the appeal academic. Mr Badham also sought to rely on observations made during the EAT rule 3(7) process as amended grounds. The issues were whether amendment should be permitted, whether issue estoppel prevented relitigation of the reason for the refusal, and, alternatively, whether the Employment Tribunal erred in its assessment of disability.

Appeal dismissed. The EAT permitted amendment of the grounds and held that issue estoppel made the appeal academic. It also concluded, in the alternative, that the Employment Tribunal had not erred in finding no mental impairment disability at the material date.

1. Amendment of the grounds. The usual course is to apply promptly to amend grounds once the need is known, so the respondent understands the case it must answer. Applying the principles in Khudaddos v Leggate [2005] ICR 1013, the EAT considered rule compliance, delay, prejudice, prospects of success and the public interest in efficient proceedings. There had been no direction requiring revised grounds, the parties had prepared for the appeal on the basis of the rule 3(7) observations, refusal would deprive Mr Badham of an arguable appeal, and further delay was undesirable. In the exceptional circumstances, amendment was allowed at the hearing.
2. Issue estoppel. The general doctrine, described in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, is subject to the narrower approach in the Supreme Court’s decision in Skatteforvaltningen v MCML Ltd, whose citation was not stated. The Court of Appeal’s broader analysis in Skatteforvaltningen v MCML Ltd [2025] EWCA Civ 371 (also reported at [2025] 4 WLR 52) had been overturned. Estoppel is confined to issues arising from the particular claim or defence. It can extend to facts fundamental and necessary to that determination, including their legal quality, but not merely to steps in the earlier tribunal’s reasoning.
3. Application of the estoppel. The earlier tribunal’s finding that the employer refused further CBT because it would not facilitate a return to work, and that the relevant barriers were unrelated to health, was necessary to its dismissal of the claims under sections 13 and 15. That finding concerned the reason for the same decision, regardless of which impairment was alleged. Mr Badham could not relitigate that issue by relying on a different disability. The appeal was therefore academic.
4. Alternative assessment of disability. Under section 6 of the Equality Act 2010, the elements of disability should be considered separately and, where appropriate, sequentially, as explained in Goodwin v Patent Office [1999] ICR 302. Normal day-to-day activities include participation in working life. The focus is the effect on the claimant’s ability to carry out those activities, not the cause of the impairment, as explained in Adremi v London and South Eastern Railway Ltd [2013] UKEAT/0316/12/KN. The judge had read the impact statement and was entitled to prefer the medical evidence that the mental health symptoms did not themselves prevent a return to work. The duration challenge was academic once no substantial adverse effect was found. The EAT also observed that a claimant relying on effects absent mitigating treatment would ordinarily need clear medical evidence: Woodrup v London Borough of Southwark [2002] EWCA Civ 1716 (also reported at [2003] IRLR 111).

1. Employment Appeal Tribunal: In K Badham v Jaguar Land Rover Ltd [2026] EAT 94 , the EAT allowed amendment of the grounds but dismissed the appeal, principally because issue estoppel made it academic.
2. Employment Tribunal: At a preliminary hearing on 10 July 2024, Employment Judge Hena found that Mr Badham had not established a mental impairment disability as at 7 March 2022. No citation for that decision is stated in the judgment.