Appeal No.UKEAT/0131/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 June 2008

Before
THE HONOURABLE MR JUSTICE BEAN
(SITTING ALONE)

MR P JOHNSON	APPELLANT

AWE Plc	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ERIC SUTER
(of Counsel)
Instructed by:
Messrs KSN Solicitors
York House 
37 Heartherdale Road
Camberley
Surrey GU15 2LT	
For the Respondent	MR MATHEW PURCHASE
(of Counsel)
Instructed by: 
EEF Legal Services
Broadway House
Tothill Street
London SW1H 9NQ	

SUMMARY`

Practice and Procedure:  Estoppel or abuse of process
Disability Discrimination:  Reasonable adjustments
Disability discrimination claim dismissed by Employment Judge on the grounds of issue estoppel following settlement of two personal injury claims.  Appeal allowed by consent and case remitted to ET.

THE HONOURABLE MR JUSTICE BEAN
1.	In this case Mr Johnson appeals from a decision of Employment Judge Hill at the Employment Tribunal at Reading on 7 December 2007 striking out his claims insofar as she struck out his claim under the Disability Discrimination Act.  The claims for unfair dismissal and breach of contract have been withdrawn and no issue arises as to them.  

2.	The position before this Appeal Tribunal is slightly unusual in that the parties are agreed that the appeal should be allowed.  But when the matter came before Judge Clark on the papers last week, he considered that pursuant to paragraph 15.3 of the Employment Appeal Tribunal Practice Direction, the case should be listed for hearing because the proposed order involved this Appeal Tribunal holding that the decision at first instance contained an error of law.  The matter has been argued briefly before me this morning by Mr Eric Suter for Mr Johnson and Mr Mathew Purchase for AWE plc.  

3.	The history is as follows.  Mr Johnson was born on 8 March 1944.  He was injured in a road accident on 15 August 2001.  He was by that time already suffering from ankylosing spondylitis.  The effect of the road accident was to exacerbate that condition.  A claim for damages for personal injuries against the other driver was issued on 10 August 2004.  

4.	Meanwhile on 13 May 2003, Mr Johnson had suffered further damage to his cervical spine in an incident at work when a window fell on to his head.  A second personal injury claim was issued against his employers, the present Respondent, on 28 April 2006.  The pleading in that case included a sentence saying that as a result of his injuries the Claimant would be medically retired on 23 February 2007 and that prior to the accident he had intended to work until his 65th birthday (that is, 8 March 2009).  On 23 February 2007, the Claimant was indeed medically retired.  

5.	On 14 May 2007, he issued a claim in the Employment Tribunals, the subject of the present appeal, which included among other claims, the disability discrimination claim.  In September 2007 (the exact date does not emerge from the documents and does not matter) both personal injury claims together were settled for a total of £30,000 and costs.  

6.	A consent order was signed by the Claimant’s solicitors and the respective solicitors for each defendant, which recorded that the two payments were to be, “in full satisfaction of the claim for damages herein” and concluded with this paragraph, “(8) Upon payment of the above sum and costs the defendants be discharged from any further liability in relation to the claimant’s causes of action herein”.  The causes of action were, in the case of the traffic accident negligence and in the case of the window injury, negligence and/or breach of statutory duties under health and safety legislation.

7.	The disability discrimination claim in the Employment Tribunal argued that the employers failed to comply with their duty under the Disability Discrimination Act.  That duty, of course, includes the duty to make reasonable adjustments.  The Claimant will seek to argue (if the Tribunal case is allowed to proceed) that it would have been possible, by making adjustments to the job he had been doing or by finding alternative work, for him to have been kept on in employment for the period of just over two years from the date of his medical retirement to his 65th birthday.  

8.	The defendants will of course be able to argue on liability that there was no failure on their part, but they also argue that there is an issue estoppel arising from the consent order, which would even if liability is established prevent the Claimant recovering compensation for loss of earnings or loss of pension in respect of the two year period I have mentioned. 

9.	The Employment Judge, in paragraphs 18 - 19 of her decision, having previously referred to the question of failure to make reasonable adjustments, said this, 
“I must therefore conclude that there were no such adjustments relevant to that claim” (that is, the second personal injury claim, the window claim);  when looking at the ET1, as drafted by the Claimant, the only adjustments he refers to are the demotion as a result of his ill health and his termination of employment.”  Both those aspects are referred to in the earlier County Court claims and have formed the basis of litigation already. I must therefore conclude that the issue of reasonable adjustments has already been the subject of litigation and therefore issue estoppel applies and there is no jurisdiction to consider the matter further.  The claim must therefore be struck out as having no reasonable success.” [sic obviously the learned judge meant to say no reasonable prospect of success.]  

10.	The Respondent has written to the Appeal Tribunal as follows:
“The respondent, having taken advice, agrees that the Employment Tribunal Judge went too far in applying the doctrine of issue estoppel to the appellant’s claim that the employer failed to make reasonable adjustments contrary to section 3A(2) of the DDA 1995.  This is on the basis that there is insufficient overlap between the issues raised in the appellant’s County Court proceedings for personal injury / negligence and the ingredients of a reasonable adjustments claim to give rise to an issue estoppel regarding the dismissal of the claim under section 3A(2).  For example, as to liability and the personal injury proceedings, the County Court would not necessarily have been called upon to consider whether the respondent had taken reasonable steps to ameliorate the disadvantage caused to the appellant by his disability.  The Tribunal also has jurisdiction to consider an alternative head of damages an award for injury to feelings.  For these reasons the respondent accepts that the section 3A(2) claim should now proceed directly to a full hearing before a different Employment Judge.”

11.	I therefore consider that subject to a little expansion to make it clear to the Employment Tribunal what issues it will have to determine, I should make an order in the terms agreed between the parties.  I find that the Employment Tribunal erred in law in concluding that the doctrine of issue estoppel required it to dismiss the claimant’s claim under section 3A(2) of the Disability Discrimination Act 1995.  That is discrimination by way of a failure to comply with a duty to make reasonable adjustments.  

12.	I therefore allow the appeal and remit that claim to the Employment Tribunal to proceed (subject to any interlocutory order which the tribunal finds it necessary to make) to a full hearing.  The Tribunal should first consider the question of liability, that is whether the Respondents failed to comply with their duty under section 3A(2) of the Disability Discrimination Act 1995 to make reasonable adjustments.  If the answer to that is “No” that is, of course, the end of the case.  If liability is established, then the Tribunal will go on to make an award for injury to feelings.  It will also have to consider whether the claim for loss of earnings and pension from 2007 to 2009 is established as a matter of law and fact. 

13.	If it does reach the stage of considering such an award, it may not make an award of compensation for loss of earnings or pension insofar as either of those items are properly considered by the Tribunal (a) to have been compensated for already in the County Court proceedings in the two personal injury actions and the consent order through which those claims were settled in September 2007 or (b) to be the subject of issue estoppel arising out of the proceedings between the parties in the County Court in the second personal injury action, that is claim 6CK01601.

14.	The composition of the Tribunal should be a different Employment Judge and also two lay members.