Wolfe v North Middlesex University Hospital NHS Trust

An appeal to the Employment Appeal Tribunal lies from a decision, not from an immaterial finding in a tribunal’s reasons. By analogy with Rule 1(3) of the Employment Tribunal Rules of Procedure 2013, a decision is one which finally determines a claim, part of a claim, or an issue capable of doing so. A successful party cannot ordinarily challenge a finding of no general significance.

Where a party identifies a material omission, ambiguity or lack of reasons in an Employment Tribunal judgment, advocates should promptly ask that tribunal to repair it before appealing. Failure to do so may have costs consequences. The EAT Practice Direction requirement to identify a point not argued below must also be observed.

The Claimant, a registered nurse, brought claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments after her dismissal for incapacity. The Employment Tribunal at Watford dismissed all claims in a judgment dated 20 July 2013, with reasons dated 8 August 2013.

Her appeal contended, among other matters, that the Tribunal had failed to consider whether the effects of her impairment were likely to recur under paragraph 2(2) of Schedule 1 to the Equality Act 2010. The Respondent cross-appealed against observations said to treat stress as an impairment capable of amounting to disability.

The central questions were whether clarification should first be obtained through the Burns-Barke procedure and whether the EAT had jurisdiction over a successful party’s cross-appeal against an immaterial finding.

1. The cross-appeal was dismissed for want of jurisdiction. Section 21 of the Employment Tribunals Act 1996 permits appeals from an Employment Tribunal decision. The useful working analogy is Rule 1(3) of the Employment Tribunal Rules of Procedure 2013: the decision must finally determine a claim, part of a claim, or an issue capable of finally disposing of one.

   The Respondent had succeeded before the Employment Tribunal. Its challenge was directed only to a finding in the reasons about a period during which no discrimination was found. That finding was obiter, unclear in scope and of no general significance. It neither formed part of the operative decision nor determined a claim or dispositive issue.

2. The Court applied the policy in Lake v Lake [1955] All ER 538 and Secretary of State for Work and Pensions v Morina and another [2007] EWCA Civ 749. A successful party should not ordinarily appeal merely to challenge an adverse or unwelcome finding. A distinct ruling on a fundamental jurisdictional issue may be appealable, but that exception did not apply.

3. The Claimant’s appeal was adjourned pending the Employment Tribunal’s response to a Burns-Barke request concerning recurrence. The EAT could not determine the factual issue on the material before it. It would then be necessary to determine whether the recurrence point had been raised below and, if not, whether it could be advanced on appeal.

4. The Court restated the established practice that a party alleging a material omission, ambiguity or inadequacy of reasons must promptly seek clarification or additional reasons from the Employment Tribunal before lodging an appeal. This is an advocate’s duty and avoids unnecessary appellate expense and remission. Failure to do so may justify adverse costs consequences. The Respondent should also have complied with the EAT Practice Direction by notifying the EAT that it would contend that the recurrence point had not been argued below.

5. In observations unnecessary to the disposition, the Court doubted whether stress caused by the prospect of returning to a particular workplace would itself constitute an impairment. It noted the distinction between clinical depression and a reaction to adverse circumstances.

• Employment Appeal Tribunal: Cross-appeal dismissed for want of jurisdiction. The Claimant’s appeal was adjourned pending clarification from the Employment Tribunal under the Burns-Barke procedure.
• Employment Tribunal at Watford: Judgment dated 20 July 2013, reasons dated 8 August 2013. The Tribunal dismissed claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments.