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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lambrou v. Cyprus Airways Ltd [2005] UKEAT 0417_05_0811 (8 November 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0417_05_0811.html Cite as: [2005] UKEAT 0417_05_0811, [2005] UKEAT 417_5_811

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APPEARANCES

 

For the Appellant	MR OLIVER BRITTON (Solicitor) 16 Billy Lows Lane Potters Bar Hertfordshire EN6 1XN
For the Respondent	MR JAMES WYNNE (Of Counsel) Instructed by: Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA

SUMMARY

Disability Discrimination and Practice and Procedure

The Tribunal erred in striking out the disability discrimination claim. On a fair reading of the pleadings and particular s as a whole, the disability claim was more than speculative.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr George Lambrou against an order of the Employment Tribunal sitting at Watford by Chairman alone dated 24 May 2005. Mr Lambrou had presented a claim against Cyprus Airways Ltd ("CAL") alleging constructive dismissal and disability discrimination.
2. By paragraph 1 of its order the Tribunal struck out the claim of disability discrimination. Mr Lambrou appeals against that order.

The Background

3. Mr Lambrou had worked for a subsidiary of CAL from 1989 as an IT supervisor or manager. In 2004 the subsidiary was being closed down. It is CAL's case that although many employees at the subsidiary were made redundant, Mr Lambrou was transferred to CAL on the same terms and conditions as he had enjoyed with the subsidiary. Mr Lambrou says that for many years he had been harassed and bullied by management, that he was in fact never given written terms and conditions for work with CAL, and that he was bullied and harassed when he asked for them. He says that he left on 30 September 2004 for these reasons.
4. Mr Lambrou instructed solicitors. They put in an originating application for him dated 18 October 2004. An attachment to the form set out his case for unfair dismissal. It also read:

"Also I am subject to a disability. I have a physical abnormality with regards my hands and feet. I am not registered disabled because of my pride.

I believe that I have been treated less favourably as a result of my disability. I believe that I was subjected to bullying and harassment and aggressive outbursts by the general manager and Mr Georgiou because I am disabled. I believe that my superiors at the company believed that they could get away with being aggressive towards me and bullying me because I am disabled and they thought it would be more difficult for me to obtain alternative employment. I believe they did not pay me the overtime which I was due because they did not believe I would pursue my rights because of my disability."

5. CAL in its response dealt succinctly with the claim for disability discrimination, denying that Mr Lambrou had been treated less favourably as a result of a disability. It denied he was discriminated against either as described in the application or at all. CAL requested further information concerning the claim including the allegation of disability discrimination. Mr Lambrou's solicitors answered in a document entitled, "Further Additional Information" dated 8 December 2004.
6. CAL asked whether the disability was a physical or mental impairment, how long Lambrou had the impairment, whether it affected his normal day to day activities and if so, how. To these questions Mr Lambrou's solicitors replied:

"3. (a) The disability of the Applicant is both physical and mental. Both these disabilities are apparent when anyone sees and communicates with the Applicant.

(b) The Applicant has had these disabilities since birth.

(c) The impairment does have an effect on the Applicant's ability to carry out normal day to day activities because he has difficulty with dexterity in his upper limbs. The applicant also has problems with his lower limbs which result in difficulty in transgressing short and long distances."

7. CAL also asked for details of the ways in which he had been treated less favourably as a result of his disability and details in support of his belief that the less favourable treatment was as a result of his disability. To these questions Mr Lambrou's solicitors replied:

"(…)

(e) It is not possible to say whether the denial of the Applicant's pay rise was a result of his disability or other general bulling and harassment. Also it is not possible to say whether the denial of the Applicant's expenses was as a result of general bullying or specific discrimination because of his disability. It is also not possible to say whether the applicant being denied his basic terms of employment was a result of bullying or discrimination for his disability or whether this was as a result of general bullying and harassment.

Also, the Applicant was required to move equipment in September 2004 as well as on other occasions and because of the Applicant's disability he was unable to move the equipment. As a result, the project that the Applicant was working on which was installing a printer could not be done and the Applicant was then bullied and harassed by Maria Rousis because she kept harassing the Applicant to do it when he had informed her that he was physically incapable of doing the movement. The Applicant was waiting for someone else to do the movement and the Applicant brought this to the attention of Phivos Xenophontos and this was a few days before the Applicant's constructive dismissal."

8. CAL served a second request for further information. Following an order of the Tribunal Mr Lambrou's solicitors answered it by a lengthy document headed "Further Particulars of Particulars" dated 14 February 2005.
9. CAL asked for the clinical names of the physical and mental impairments referred to. Mr Lambrou's solicitors answered "arthogryposis multiplex congenital" in respect of the physical impairment. In respect of the mental impairment the answer was as follows:

"(b) The mental impairment is apparent because the applicant has a nervous twitch and when people communicate with the Applicant the Applicant appears nervous and very sensitive and generally vulnerable. These answers are generalities and firmer answers can await expert medical evidence.

(c) The Respondent has used the wording mental impairment. The Applicant used the word impairment in 3(c) of the original reply. The impairment was specifically referring to the physical disability of the Applicant. It is the Applicant's case that this physical disability has lead to a mental condition which may or may not fall within the ambit of the Disability Act. This is because the Applicant is very sensitive about his physical disability so much so that he does not claim any Government benefits which he may be entitled to. The intimidation that the Applicant suffered was that he worked for the Respondent they have resulted in the mental disability to the extent that the Applicant became depressed."

10. CAL asked for details of the incidents when he was asked to move equipment which he was unable to move. He gave some further details and referred to earlier paragraphs of his Further Particulars in which he had described earlier incidents.
11. In essence Mr Lambrou's Particulars assert, by reference to some specific instances, that on several occasions he needed help moving equipment by reason of his condition but there was no provision for him to have help, and that he was harassed when he could not progress the work: see in particular pages 17- 19 and 26-27 of the Particulars. On page 17 it is said that he could not help dispose of a monitor because of pain in his feet. On page 18 there is a clear implication that he needed help to lift and carry personal computers and printers. On page 19 it is said that he could not get on to his hands and knees for a long duration and could not handle a Stanley knife. Indeed pages 18 and 19 are expressly stated in the Particulars to be "other examples of insensitivity to the Applicant's disability".

The Tribunal's Decision

12. On 7 April 2004 the Tribunal ordered a pre-hearing review. The letter to the parties said that the purpose of the pre-hearing review was to consider the issues in general and in particular what Mr Lambrou's case was in respect of his alleged disability and its general relevance.
13. The hearing took place on 6 May 2005. Mr Lambrou did not attend. His solicitor attended. After hearing the parties the Tribunal, sitting by Chairman alone, struck out the disability discrimination claim. The paragraph of the order striking out the claim of disability discrimination gives three reasons for the order:

"…it is no longer possible to have a fair Hearing of those proceedings, that such a claim has no reasonable prospect of success, and that the manner in which the proceedings have been conducted has been unreasonable under Rule 18(7) of the Employment Tribunals Rules of Procedure 2004."

14. In its Reasons the Tribunal sets out those particulars which deal directly with what the disability was, and whether there was discrimination. The Tribunal does not set out or refer to the specific instances which Mr Lambrou gave where there were tasks which he was unable to complete. Nor does the Tribunal quote the paragraph where he sets out what he says is the effect of his disability on his day-to-day activities. The Tribunal then concluded:

"The conclusion of the Tribunal is that this claim of disability discrimination is purely speculative. It has not been properly considered to the extent that the Claimant is unaware as to whether he can bring himself within the Disability Discrimination Act 1995. Even if the Claimant could establish he was a disabled person within the DDA (and currently there appears to be no medical evidence to support that contention) he appears to be unable to establish a prima facie case that any less favourable treatment suffered by him was as a result of his disability. Taking into account the overriding objective, and particularly the requirement to save expense, it appears to the Tribunal that it is not appropriate to allow this Claimant to start a case which is purely speculative, which will involved the Respondent in very substantial legal costs and which appears to have very little prospect of success. At the date of the pre-hearing review, almost 7 months after the claim was lodged, the Claimant appears to be no further forward in obtaining the necessary evidence to support any claim under the DDA. This is totally unfair on the Respondent and therefore should be struck out under a combination of Rule 18(7)(b), (c) and (f) of the Employment Tribunals rules of Procedure."

15. The Tribunal then gave directions as to the hearing of the constructive dismissal claim, which included the setting of a date in November, some 6 months ahead.

The Appeal

16. Mr Lambrou's Notice of Appeal at first alleged procedural irregularity. It was said that the claim for disability discrimination should not have been struck out in Mr Lambrou's absence and without any notice being given under Rule 19(1). At a preliminary hearing of the appeal these grounds were dismissed as having no substance. Mr Lambrou's solicitor was present and had an opportunity to address the Tribunal on the question before the striking out order was made. However, on substantive grounds the appeal has proceeded to a full hearing on the question whether the striking out order should have been made.
17. On behalf of Mr Lambrou Mr Britton submits that there was material in Mr Lambrou's pleadings which gave a more than speculative prospect of establishing that Mr Lambrou had a physical disability and that he had been discriminated against by reason of it. He points out that the Tribunal did not refer to the specific instances given by Mr Lambrou where he was unable to carry out part of his work and where he states CAL'S reaction to that problem. He says that the Tribunal ought to have considered long and hard before striking out the claim which should have been a last resort. He says that the Tribunal ought to have considered further directions such as the provision of concise Particulars, the provision of a medical report or even an unless order to supply Particulars rather than the immediate draconian step of striking out.
18. On behalf of CAL Mr Wynne makes the following submissions. He submits that even if Mr Britton is correct in his submission that there was more than speculative material in the Particulars on the disability discrimination issue, nevertheless for the other two reasons which the Tribunal gave, the appeal ought not to be allowed and indeed, cannot be allowed. The Tribunal, he submitted, would still have struck the claim out because a fair trial was not possible or because of unreasonable conduct, even if the Tribunal considered the claim to have reasonable prospects of success. He says that the three reasons given by the Tribunal are freestanding. He points out that Mr Lambrou was represented at the hearing. Mr Lambrou's representative ought to have been in a position to take the Tribunal to all the material in support of the disability claim and ought to have been able to justify it. Today, he says, the submissions made by Mr Lambrou are only consistent with his case not having been properly explained to the Chairman. It was, he says, fully within the remit of the Chairman to conclude that it would not be possible to have a fair hearing on the basis of the case as then pleaded. As pleaded, if the case had gone to trial, it would have been impossible for CAL to know the case it had to meet.
19. While Counsel for CAL accepts that there was some material in the particulars which went to the question of disability, he says that the material did not go far enough. It was insufficient to refer to difficulties with dexterity and mobility. It would be important to address the specific issues which arise under the Disability Discrimination Act and the guidance which has been issued pursuant to that Act. In all the circumstances he says the Chairman's conclusion that the claim should be struck out is impeccable and he says that striking out was an appropriate sanction; certainly one which the Tribunal Chairman could in his discretion impose without any error of law.

Conclusions

20. I deal first with the Tribunal's conclusion that the disability discrimination claim had no reasonable prospect of success. The Tribunal formulated this or put it in different ways, talking of a prima facie case and talking also of little prospect of success, but fundamentally I have no doubt that the Tribunal had in mind the test of whether there was no reasonable prospect of success.
21. As regards mental impairment the Tribunal was in my judgement (without doubt) right to conclude that the claim had no reasonable prospect of success. It is doubtful that any suggestion of mental impairment would have surfaced if the question had not been specifically asked by CAL. The first response was wholly inadequate. The second response confirms that originally the intention on Mr Lambrou's behalf was to rely on physical disability. Being sensitive and nervous are not clinically recognised mental conditions. There is the faintest suggestion on page 19 of the Further Particulars that Mr Lambrou may have become depressed as a result of harassment but the Particulars candidly say that the condition "may or may not" fall within the 1995 Act.
22. As regards physical impairment however, I consider that the position is different. This was the impairment to which Mr Lambrou had always intended to refer. His originating application refers to disability in his hands and feet. He gave it a clinical name - a congenital condition - arthrogryposis multiplex. He said what its effect was on his day-to-day activities: difficulty with dexterity in his upper limbs, and problems with his lower limbs which result in difficulty traversing short distances. He gave instances where he was unable to do certain work, and said that his employer did not help him, but rather harassed him. In my judgment there were the makings of a case based on physical impairment.
23. Mr Lambrou's pleadings on the point were poorly set out, muddled and not particularly helpful to a busy Tribunal Chairman attempting to sift the wheat from the chaff. On the disability point the pleadings shows signs of being prepared without any great thought as to the issues involved. I strongly suspect that the Chairman was not assisted to any great extent by the advocate who appeared for Mr Lambrou on the day of the pre-hearing.
24. There is force in the submission that the Particulars are inadequate and that proper Particulars will direct themselves, not only in the broadest of terms to the question that was asked in the request, but also to the key issues raised by the Disability Discrimination Act and the Code of Guidance: see for example paragraphs 14 and 15 of the Code of Guidance.
25. However, even in the absence of any real assistance from the claimant's representative the Tribunal ought, in my judgment, to have regard to the whole of the pleaded case before it strikes out a Disability Discrimination Act claim. The Tribunal has referred itself to those passages which deal directly with the question of whether there was disability, but not to what Mr Lambrou said about its effect on day-to-day activities and not at all to those passages in the pleadings where Mr Lambrou set out specific instances of treatment upon which he relied. These illustrate the case Mr Lambrou was making. Whether Mr Lambrou has a strong case remains to be seen. When the totality of his pleading is taken into account, I do not think it can be said that his claim has no reasonable prospect of success nor, when one has regard to the instances he gave, do I think it can be said that he has failed to make out a prima facie case that any less favourable treatment suffered by him was as a result of his disability. I use the phrase 'prima facie case' because it is the phrase the Chairman uses at that point. It is not, as I have already said, the precise wording of the rule.
26. I turn then to the question of whether the Tribunal's order can be justified on the other grounds given. In my judgment the reasons which the Tribunal relied on are interdependent. The Chairman says that he is striking out the claim under a combination of Rule 18(7)(b) and (c) and it is plain that when he comes to exercise his discretion he has regard to the fact that in his judgment Mr Lambrou's case is purely speculative and appears to have little prospects of success. In those circumstances I do not think it is possible to disentangle the view the Chairman formed of the case from his review of the pleadings with the subsequent reasons that he gave for striking the claim out.
27. I would add just the following words in relation to each of the other grounds of striking out. As to unreasonable conduct there is certainly merit in the Tribunal's criticisms that the disability claim had not been properly considered. Any practitioner experienced in this field will see that Mr Lambrou's case had not been well deployed. I would expect that the Chairman and any practitioner experienced in the field would appreciate that Mr Lambrou's solicitor cannot have been himself experienced in the field.
28. Even if a threshold ground for striking out the proceedings is made out, it does not necessarily follow that an order to strike out should be made. There are other remedies. In this case the other remedies may include the ordering of specific Particulars and, if appropriate when Particulars are ordered, further provision for a report which, in furtherance of the overriding objective, will usually be by a single expert jointly instructed. A Tribunal should always consider alternatives to striking out: see HM Prison Service v Dolby [2003] IRLR 694.
29. On the question whether it was possible to have a fair hearing of the disability discrimination claim, it was plainly not possible to have a fair hearing of it in the state of pleadings as they stood when the case came before the Tribunal Chairman. One of the purposes of holding a pre-hearing review is to case-manage cases where the pleadings are in poor order if there is some substance to the underlying complaint. The Merits Hearing was not listed until November. There was, therefore, a 6-month period for case management orders to bite. If the Chairman had reached the conclusion that there were reasonable prospects of success in the claim (looking at the Particulars as a whole) then I had no doubt that he would by case management have ensured that the disability discrimination issue was properly addressed and focused well before the hearing. For these reasons the appeal will be allowed.
30. The Appeal Tribunal may (when remitting a case to the Tribunal to continue its proceedings in accordance with its judgment) give further directions: see s.35. It seems to me highly desirable that I should give further directions as to the progress of this claim. They will include focused Particulars; they may include the provision of medical evidence. I will hear the parties address me on those matters hereafter.