Appeal No. UKEAT/0533/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 October 2010
Judgment handed down on 17 December 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(Sitting Alone)

SOUTH YORKSHIRE FIRE & RESCUE AUTHORITY	APPELLANT

1.  MRS M BEEVER
2.  MR L MARTIN
3.  MR D J BUCKLEY	
4.  MR P TONGE 								      RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR. RICHARD HIGNETT
(of Counsel)
Instructed by:
Weightmans LLP
Peat House
1 Waterloo Way
Leicester
LE1 6LP	
For the Respondents	MR. PAUL DRAYCOTT
(of Counsel)
Instructed by:
Thompsons Solicitors
Arundel House
1 Furnival Square
Sheffield
S1 4QL	

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Construction of term

On its true construction the criterion of “commitment to achieving high levels of attendance” as part of the criteria for receiving a payment under the Fire Services Continual Professional Development Scheme could not be measured solely by reference to meeting target maximum absence levels (even taking into account “disregarded absences”).

THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1.	The Claimants are firefighters (or in one case a control room assistant graded as a firefighter) employed by the South Yorkshire Fire and Rescue Authority (“the Authority”).  Their claims are in respect of unpaid sums which they say are due under a “Continual Professional Development Scheme” (“the Scheme”) promulgated by the National Joint Council for Local Authority Fire and Rescue Services (“the NJC”). The sum in each case is £915, in respect of the year beginning 1st July 2008, claimed by way of unlawful deduction from wages, contrary to Part II of the Employment Rights Act 1996. In each case the reason for the non-payment was the individual Claimant’s attendance record. 

2.	The claim was upheld by an Employment Tribunal sitting at Sheffield, comprising Employment Judge Williams sitting alone.  The Authority has appealed against the Tribunal’s decision.  There is also before me what is described, not quite accurately, as a cross-appeal against the rejection by the Judge of an alternative claim made for the same amount by one of the Claimants, Mrs. Beever, under the Disability Discrimination Act 1995.  Finally, the Claimants appeal against an interlocutory order for costs made against them by the Registrar in the sum of £350 (plus VAT).  I take those matters in turn.

3.	Both before me and before the Tribunal the Claimants were represented by Mr. Paul Draycott and the Authority by Mr. Richard Hignett, both of counsel. 

THE MAIN APPEAL

THE SCHEME AND THE CONTRACTS OF EMPLOYMENT

4.	The Scheme was negotiated in return for the abolition of a long service increment previously in place.  Although described as a scheme to reward “continual professional development”, that term is used in a somewhat idiosyncratic sense: to a considerable extent at least, what the Scheme appears designed to reward is good performance.  It was formally promulgated by a circular from the NJC (NJC/15/07) dated 28th September 2007.  It was accompanied by a document entitled “Guidance Notes for Applicants”. The Scheme was said to be “with effect from 1 July 2007”: in other words it was partly retrospective.  

5.	Para. 1 of the Scheme reads as follows:
	
	“The scheme is designed to recognise and reward experienced employees who are able to demonstrate continual professional development over and above that required at ‘competent’ level under each of the national standards set out in the attached Guidance to Applicants document. All parties to the process should be clear that to succeed in their application employees would be required to show that they have achieved this level of continual professional development against each of the national standards.  It is the expectation of the National Joint Council that the vast majority of eligible employees will both achieve, and maintain, these standards.”

6.	Despite the formal dichotomy between the Scheme and the Guidance Notes, the former cannot in fact be understood without reference to the latter, and I will accordingly not attempt to set out their terms separately.  The effect of the two documents taken together can be sufficiently summarised as follows:

(1)	Firefighters become eligible for a payment under the Scheme (“a CPD payment”) after five years from when they first attain competency level in their relevant role.

(2)	In order to qualify for a first CPD payment an eligible employee must apply using the application form whose terms are set out in the Guidance Notes.  I give further details of the application process below.  Payments if awarded are expressed as an annual sum but payable in instalments on the normal pay-day (i.e. typically monthly) as from 1st July. 

(3)	Para. 2 of the Scheme sets out the governing principle for qualification for a CPD payment as follows:	

“To qualify for the payment employees will be required to demonstrate that their application is indicative of continual professional development against each of the national standards.”

(4)	The “national standards” referred to in para. 2 of the Scheme are set out in the Guidance Notes, the fourth paragraph of which reads:

“The national standards and their related criteria are as follows:

(i)	 Professional competence
•	Effective organisation of work to meet the demands of your role
•	Commitment to health and safety requirements
•	Experience

(ii)	Commitment to the job
•	Commitment to achieving your Fire and Rescue Service’s objectives
•	Commitment to personal and professional development
•	Commitment to achieving high levels of attendance

(iii)	Relations with the public and colleagues
•	Promoting equality, diversity and human rights in the working practices
•	Contributing to your Fire and Rescue Service’s objectives, recognising the needs of all relevant communities
•	Working as part of a team

(iv) Willingness to learn and adjust to new circumstances
•	Making best use of available technology 
•	Demonstrating an openness to change”

The second paragraph of the Guidance Notes reads:

“High continual professional development is reached under each national standard by demonstrating that continual professional development against each of the criteria.”

(5)	The process for determining entitlement to a CPD payment is different as between the first year of eligibility on the one hand and subsequent years on the other.  The application process for a first CPD payment is set out at paras. 9-11 of the Scheme as follows:	

“In the first instance, individual employees are responsible for applying for the  payment, which will be required to complete the application form in accordance with the guidelines provided. This will include specific examples of success/achievement against each of the criteria under the national standards.

On application, examples should relate to experience and knowledge gained since attaining competence in role.

The completed application form will be submitted to the appropriate designated manager who will consider the application and refer his/her recommendation to the verification manager for final decision.” 	

That is glossed in the Guidance in the following terms:	
		
		“You will find attached to this guidance an application form for you to complete.  Remember, the onus it on you to show how you have achieved continual professional development over and above that required at ‘competent’ under each of the national standards.  Care should be taken in completing this form to ensure fair and appropriate decisions are made.  If you have any questions that are not covered in this guidance please talk to your line manager before submitting the application for.  For each national standard you are required to provide sufficient evidence to enable a fair assessment to be carried out.  This does not necessarily mean that you must provide an example for every indicator under each standard.”

(6)	The part of the Guidance Notes covering the completion of the application form in relation to national standard (ii) contains a box entitled “Commitment to achieving high levels of attendance”.  It reads as follows:
		
		“You should indicate, for example, how you:	  Achieved a satisfactory level of attendance in accordance with local policy and/or targets.  In making such a judgment Fire and Rescue Service’s will wish to be mindful of any reasonable circumstance which may have impacted upon an individual’s ability to achieve this, and the individual’s usual attendance record.”

The reference to “local policy and/or targets” should be noted. 

(7)	Turning to the position in subsequent years, once employees are in receipt of a CPD payment they are not required to make a fresh application each year.  Instead, as provided at para. 12 of the Scheme:

“From then on the respective fire and rescue service will review and assess those in receipt of a Continual Professional Development payment to determine their on-going eligibility.  Individuals will be notified of the outcome, in writing, prior to 1 June each year.  The expectation is that non-renewal of the payment will be the exception.”

That is re-stated in broadly similar language in the Guidance Notes as follows:

“From the second anniversary onwards the respective fire and rescue service will review and assess those in receipt of a Continual Professional Development payment to determine their on-going eligibility.  Individual will be notified of the outcome prior to 1 July each year.  The expectation is that non-renewal of the payment will be the exception.”

(8)	Decisions not to award a CPD payment, either in year 1 or subsequently, can be raised through the grievance process.

(9)	The amount of the annual CPD payment varied between services in order to reflect the quantum of savings achieved from the abolition of the long-service increment. For South Yorkshire in the year with which we are concerned it was £915. 

7.	The Claimants’ contracts of employment expressly incorporated “collective agreements negotiated from time to time by the [NJC]”.  It is common ground that the Scheme constitutes such a collective agreement. 

IMPLEMENTATION OF THE SCHEME IN SOUTH YORKSHIRE

8.	Following the national promulgation of the Scheme the Authority formally circulated it within South Yorkshire by means of a routine weekly order/weekly bulletin.  The NJC circular, incorporating the Scheme itself and the Guidance Notes and application form were circulated to all employees, together with a Guidance Booklet produced by the Authority and a set of responses to FAQs.    

9.	The Guidance Booklet begins:

“This document has been developed from the nationally agreed ‘guidance notes for applicants’ and has been designed to help you complete the application form in order to apply for the continual professional development payment.  In order to qualify, you will need to demonstrate continual professional development over and above that required at ‘competent’ level under each of the national standards.

For each of the national standards you are required to provide evidence of how you have continually professionally developed.

Under each indicator within this document, SYFR have highlighted how you should demonstrate achievement of continual professional development.  This should guide you in terms of what evidence will be required against the criteria.
In order to aid you with the process and make the provision of evidence quicker and simpler, SYFR has linked some of the required criteria to your Performance Development Review.”

It proceeds to offer some glosses on the national standards.  As regards national standard (ii) it reads:

“Indicator:  Commitment to achieving South Yorkshire Fire and Rescue Service’s objectives.

SYFR Guidance:  SYFR requires that in order to meet this standard you should provide an example of where you have taken personal responsibility for your actions and demonstrated sound judgement.  You will have participated in a Performance Development Review in order to identify development activities.

Indicator:  Commitment to personal and professional development 

SYFR Guidance: SYFR requires that in order to meet this standard you will have participated in a Performance Development Review.  The completion of this will evidence:

•	Keeping yourself up to date with changes affecting your role
•	Assessing your skills and identifying potential personal development needs
•	Undertaking continuous self-development activities
•	Obtaining and utilising feedback from relevant people

Indicator:  Commitment to achieving high levels of attendance

SYFR Guidance:  SYFR requires that in order to meet this standard you will achieve satisfactory attendance in accordance with local targets which equate to an absence level of no more than:

•	In 2007		8.5 days per annum
•	In 2008/09	7.5 days per annum
•	In 2009/10	6.5 days per annum

N.B: Any exceptional circumstances that may impact upon an individual’s ability to achieve this will be assessed and moderated by the Director of Human Resources, taking into account the individual’s usual attendance record over the previous 3 years.”

I will refer to the requirement in the final section of that passage as “the attendance criterion”.  The targets stated in it derive from the Authority’s Corporate Plan.

10.	One of the FAQs reads:

“In the guidance which accompanies the scheme it mentions that a satisfactory level of attendance should be achieved.  Does this mean that a CPD payment will automatically not be made if excessive sick leave has been taken?”

The answer is:

“No.  The purpose of the CPD scheme is to recognise and reward experienced employees who can demonstrate continual professional development over and above that required at competent level for each of the national standards set out in the scheme.  The criterion applying to high levels of attendance is one of a number of criteria under one of those national standards – commitment to the job.  It should not be the only consideration upon which a decision is made to award, or not award, a CPD payment.”

11.	In addition, the Authority’s Human Resources Department produced in May 2008 a protocol for handling CPD issues.  This stated, inter alia, that in assessing compliance with the attendance criterion no account would be taken of any absences disregarded for the purposes of the Authority’s attendance management procedures (“disregarded absences”).  The absences in question are those due to certain specified conditions (including pregnancy and “on-duty injury”) or which are “related to disability” within the meaning of the 1995 Act. 

12.	Because of the problems caused by the element of retrospectivity, a pragmatic decision was taken in South Yorkshire to treat eligible employees as having satisfied the attendance criterion in the first year, i.e. 2007/2008.  For similar reasons in the second year, 2008/9, a truncated period of eight months – 1st July 2007 to 29th February 2008 – was taken as the period over which the criterion must be met. 

THE FACTS OF THE CLAIMANTS’ CASES

13.	Three of the Claimants were eligible employees when the Scheme was introduced.  They applied for and received CPD payments in 2007/8 (though, as noted above, there was in fact no consideration of whether they satisfied the attendance criterion).  Accordingly they were not required to submit an application form for 2008/09 but would be the subject of automatic “review and assessment”.  The fourth, Mr Tonge, became eligible for the first time in 2008/09 and duly submitted an application form. 

14.	Each of the Claimant’s claims for 2008/09 was rejected on the basis that he or she had failed to demonstrate that they had achieved the level required against national standard (ii), and more specifically because they had absence levels in the assessment period in excess of the 7.5 day target identified in the Authority’s Guidance Booklet.  That was the effect of the Judge’s findings (see para. 16 below).  He made no detailed findings about the process followed in each case, but I have been shown some of the documentation, and the position can be summarised as follows:

(1)	In the case of the three Claimants who were already in receipt of a CPD payment a manager completed in the course of March 2008, a form headed “Evidence of CPD”: this was plainly intended as the “review/assessment” provided for under para. 12 of the Scheme.  The form contained boxes for the manager to tick whether each of a number of “competences”, including “commitment to achieving high levels of attendance”, was met or not.  There was also a scale for indicating days of absence.  The manager was asked to state whether he or she felt that the employee should continue to receive their CPD payment.  There was a space for the inclusion of “exceptional circumstances” where any boxes had been ticked as “not met”.  The manager was asked to return the form to the HR department following completion.

(2)	In the case of Mrs. Beever the manager did not tick any of the competence boxes but she noted on the absence scale that Mrs. Beever had been absent for over forty days in the relevant period. She seems, though the form as shown to me was not clear, to have answered “yes” to the question whether Mrs. Beever should receive a CPD payment.  She put a tick against the “exceptional circumstances” question but appears to have supplied no details.  Mrs. Beever had in fact been suffering from a stress-related condition of some kind but no details are given and it is not made clear what the manager knew.  Following receipt of the form the Acting Director of Human Resources wrote to Mrs. Beever telling her that “we are unable to award you CPD payment for this year” unless she could show that her absences were due to a condition that entitled her to have them disregarded. There was some further correspondence about whether her condition amounted to a disability but the original decision was maintained.

(3) 	In the case of Mr. Martin, the manager ticked all the competence boxes, including “commitment to achieving high levels of attendance”.  He did not make any entry on the absence scale, though it is common ground that Mr. Martin had in fact been absent from more than 7.5 days in the eight-month assessment period as a result of having snapped a ligament in a finger of his right hand.  The manager answered “yes” to the question whether Mr. Martin should receive a CPD payment.  In due course the HR department notified him that he would not receive a CPD payment.  I do not have the letter, but presumably it gave his absence record as the reason.

(4)	As for Mr. Buckley, the manager recommended that he should continue to receive a CPD payment.  He noted that Mr. Buckley had had ten days absence during the assessment period, but answered the “exceptional circumstances” question as follows:

“Although FF Buckley has exceeded the target sickness absence for this year due to a viral respiratory infection his overall attendance is excellent and has not exceeded the average for the last 2 years.”

Again, I have no correspondence, but it appears that the HR department refused a CPD payment because of his absences.

(5)	As for Mr. Tonge, he noted in the part of his form dealing with national standard (ii) that he had been knocked off his bike in December 2007 on his way home from work and had suffered a broken arm and ribs but that he had returned to work on modified duties at the earliest possible date.  The “assessor” did not comment on this aspect but his overall assessment of Mr. Tonge’s commitment to the job was positive.  At the conclusion of the form he stated, in the language of the form:

“I confirm that the applicant has demonstrated sufficient continual professional development and should be awarded a continual professional development payment”.

The verifier endorsed that conclusion.  He added:

“FF Tonge has had more than the number [of] days sickness identified, which disqualifies him from the CPD payment.  However, he was off work due to injuries sustained following him being knocked off his bicycle on the way home from work.”

The only subsequent correspondence which I have is a memo from the Authority’s occupational health nurse giving details of Mr. Tonge’s injuries and noting that he had been “proactive in his recovery”. 

15.	I was told by Mr. Hignett that Mr. Hoey, of the Authority’s HR department, gave oral evidence to the effect that in reaching his decision to reject the Claimants’ claims he had had regard to matters other than simply whether they had achieved the targets, including their past attendance records.  But this is not referred to in the Reasons, and Mr. Hignett accepted that in the absence of any challenge in that regard in the Notice of Appeal I could not take it into account. 

THE ISSUES

16.	Although, as I have said, there are no detailed findings, it is evident that in each case the opinions of the managers conducting the review/assessment, or in Mr. Tonge’s case assessing/verifying his application, were not followed by the HR department because it believed that the opinions in question did not accord with the criteria in the Authority’s Guidance Booklet.  The department evidently understood that the attendance criterion preclude CPD payments to employees with absence records exceeding the target figure unless they could be formally disregarded in accordance with Annex C of the Protocol: there was no room for the exercise of any discretion.  At para. 5.24 of his Reasons the Judge said:

“The point in this case is that the respondent made no criticism of the claimant save to say that they have failed simply because they were absent for longer than the permitted period in 2008.  Indeed, Mrs Beever was actually promoted during the period in question.  That hardly suggests any failure to meet the required standards of commitment to the job.  It was evident to me that whilst Mr Hoey may have been prepared to “tinker” slightly in the most borderline of cases, he and those deciding whether or not to make payment had simply taken the view in the claimants’ cases that because they were absent for more than 7.5 shifts during the relevant period and because those absences did not come within the category of disregarded absences then that was enough in itself to persuade the respondent that they should not receive their payments under the Scheme for 2008.”

17.	The Judge’s conclusion follows directly from that factual finding, at para. 5.25 of the Reasons:

“In my view, this respondent did not exercise its discretion in a way compatible with these ‘claimants’ contracts of employment.  It simply “ticked boxes” and it is not what was said or envisaged in The Scheme and in the Guidance notes under it.” 

18.	That conclusion depends squarely on the correct construction of the contract.  That is a question of law.  In those circumstances it is not necessary for me to examine the more detailed reasoning of the Employment Judge; and without any disrespect to him I do not propose to do so.  The fundamental question is whether on the true construction of the Scheme the Authority was entitled to treat absence for more than 7.5 days (subject to any disregarded absences) as determinative of the question whether an employee had met the attendance criterion.

SUBMISSIONS AND CONCLUSION

19.	It was Mr. Hignett’s case that the criteria established by the national standards were not sufficiently precisely worded to be capable of creating legal rights and objections apt for incorporation in the contracts of employment, and that accordingly it must have been envisaged that individual services would be free, within the spirit of the Scheme, to provide for local policies or rules by which satisfaction of the standards could be judged.  He submitted that this is indeed explicit in the case of the attendance criterion: see the phrase “in accordance with local policy and/or targets” in the notes on the application form quoted at para. 6 (6) above.  The 7.5 day figure was just such a target, and the Authority was entitled to treat it as the test of compliance with the attendance criterion.

20.	I do not accept that the attendance criterion, unaccompanied by any quantifiable target, was too uncertain or was otherwise not apt for incorporation into the Claimants’ contracts of employment.  It requires an exercise of judgment on the part of the employer, but there is nothing unusual about that; and the criteria for the exercise of that judgment are set out.  The question therefore is what that exercise required.  As to that, Mr Draycott contended that it was wrong to treat the Authority’s 7.5 day target as an absolute touchstone of compliance with the attendance criterion, subject only to the rule about “disregarded absences”.   The relevant standard was concerned with “commitment”, and the attendance criterion was framed as “commitment to achieving high levels of attendance”, not simply as “achievement of” such standards.  Further, the guidance quoted at para. 6 (6) above states that the employer “will wish to be mindful of any reasonable circumstance which may have impacted on the employee’s ability to achieve a satisfactory level of attendance and also of his or her usual attendance record”: while the language may be soft-edged, it at least shows that employers were not intended to operate an absolute rule.

22.	In my judgment Mr Draycott’s submission is correct.  The language of the standard itself and the passage from the Guidance Notes on which he relies plainly require an assessment of the employee’s attitude to attendance.  As a starting-point that attitude can perfectly reasonably be judged by whether he or she meets a published target for maximum absences.  Other things being equal, an employee who misses 7½, or indeed 6½, days work a year can properly be judged not to have demonstrated a proper commitment to the standard, even if some excuse is available: most employees will in the course of a year encounter some problems about coming to work – transport difficulties, family or childcare problems, minor ailments and suchlike – but those who are “committed to achieving high levels of attendance” find ways round those problems, at least on all but a few occasions.  But that is only a starting-point, and I emphasise the qualification “other things being equal”.  It is not possible to describe an employee who has a serious illness or injury that prevents him from coming into work as lacking “commitment”.  It is not a question of attitude but of actual incapacity.  That point is not met by pointing to the fact that absences due to injuries at work or which are related to a disability are disregarded: those are not the only kind of illness or injury which may adversely affect an employee’s attendance record without impugning his “commitment”.  

23.	Mr. Hignett pointed out that once an employer departs from the objective criteria expressed in the attendance targets he is likely to be faced with some awkward judgments:  can he properly say that employee A, who has self-certified for a week with flu or back pain, has not shown “commitment”, even though he is morally sure that employee B would have shrugged off the same symptoms and come in to work ?  For that reason, attendance bonus schemes typically apply purely quantitative criteria (subject to provision for particular types of absence); and if employees lose bonus through illness, however serious and genuine, that is simply their misfortune.  That may be right, but the Scheme is not framed as a conventional attendance bonus scheme.  Its language is peculiar and no doubt the product of careful negotiation, and I see no justification for declining to give weight to the actual words used.  If the Authority is left with some difficult judgments as a result, that is the result of the agreement which it – or rather the NJC - has made.  I would, however, point out that what is required is an “assessment”; and if in my example employee A’s manager knows him well and has some reasonable basis for a judgment (say) that he too easily treats minor ailments as a reason for not coming in to work, a conclusion that he has not demonstrated the requisite commitment would be legitimate. 

24.	Once that point is reached, it is clear that the responsible managers in all four cases approached the necessary assessment in the right way.  Mr. Buckley’s manager and Mr. Tonge’s “verifier” set out their reasoning explicitly, and Mr. Buckley’s manager in particular performed exactly the exercise envisaged by the guidance.  As for Mr. Martin, who had suffered a straightforward incapacitating injury, the facts in his case spoke for themselves.  Those assessments having been made, there could be no reasonable question that the employees had met the attendance criterion, and the Judge was plainly right simply to find that the CPD payment was properly payable and order the Authority to pay it accordingly.  The evidential position about Mrs. Beever is less clear because her manager gave no explicit account of her reasoning, and it is self-evidently more difficult to assess an employee’s attitude in the case of a claimed stress-related illness.  If it were clear that the manager had simply failed to make any assessment of Mrs. Beever’s “commitment to achieving high levels of attendance” a tricky question might arise of whether any right to a CPD payment had accrued.  But on the whole I think the Judge was entitled to treat the manager’s recommendation as sufficient evidence that an assessment had been done.  

25.	That is sufficient to justify my dismissing the Authority’s appeal on the main point.  I reach my conclusion without relying on the terms of the answer to the FAQ set out at para. 10 above.  I agree with Mr. Hignett that it is strictly speaking inadmissible as an aid to the construction of the Scheme.  It is in any event not entirely clear what it means, though the indication that employees who take “excessive sick leave” will not necessarily thereby forfeit entitlement to a CPD payment is plainly more consistent with the Claimants’ construction than the Authority’s.  

26.	It is also unnecessary for me to consider an alternative submission on the part of Mr. Draycott that an employee could in principle qualify for a payment under the Scheme even if he did not satisfy each of the criteria under each of the national standards.  But I should say that I find that hard to reconcile with the explicit statement in the Guidance Notes that “high continual professional development” is reached by demonstrating continual professional development “against each of the criteria” (see para. 6 (4) above).  And even if the status or meaning of that statement were debatable, it is hard to see how a discretionary decision by the Authority to apply such a standard could be challenged.    

27.	A further point was raised by the Judge’s reasoning, namely whether the HR department was in any event entitled to go behind the opinions of the managers conducting the “review/assessment” in the three “year 2” cases or of the assessor and verifier in Mr. Tonge’s case: it appears that the Judge may have taken the view that the Scheme established a contractual mechanism under which the opinions in question were binding.  I do not think that that is the right way to look at it.  The core right enjoyed by the employee is to have his compliance with the attendance criterion assessed.  In practice that can only be done by line management, and not by HR.  But if a judgment were reached in the employee’s favour otherwise than by a conscientious application of the criterion – to take an extreme example, if an employee with a very poor attendance record were recommended by a manager for a CPD payment as a result of threats or in return for favours – the Authority could not be bound; and there would be nothing inappropriate in its HR department intervening. 

THE ALTERNATIVE CLAIM IN MRS. BEEVER’S CASE

28.	As already noted, Mrs. Beever put her claim in the alternative under the Disability Discrimination Act 1995.  The Judge observed at para. 5.26 of the Reasons that he had not initially understood that he was being asked to deal with that claim; but he appears nevertheless to have believed that he was being asked to decide whether Mrs. Beever suffered from a disability within the meaning of the Act at the material time, and he said, without giving any reasons, that on the evidence before him it had not been proved that she did.  It ought to have followed that her claim was dismissed, but there is nothing in the Judgment to that effect.

29.	In view of my decision on the main appeal this issue is academic: the only relief sought by Mrs. Beever was payment of the £915 to which I have confirmed that she is entitled under Part II of the 1996 Act.  But I ought in case the matter goes further to record that both counsel were agreed before me that the Judge’s observations could not be treated as a proper disposal of Mrs. Beever’s claim of disability discrimination and that were it to become relevant the issue would have to be remitted to the Tribunal.  

THE APPEAL AGAINST THE REGISTRAR’S COSTS ORDER

30.	The “sift directions” in this case were made on 21st December 2009.  Somewhat ungenerously in view of the intervening holiday period, Judge Birtles gave only the standard 14 days for the Claimants to lodge an answer.  Their solicitors, Messrs Thompsons, asked for an extension of time to 11th January 2010.  The Authority’s solicitors, Messrs Weightmans, sensibly did not object and the Registrar granted the extension.

31.	On the morning of 11th January Thompsons asked Weightmans to agree to a further extension of 24 hours.  It appears, though it is unclear how much detail was given at the time, that the extension was required because Mr. Draycott was in unexpected difficulties owing to a combination of circumstances including the very bad weather at the start of the year, a domestic crisis and the pressures of a pending case in the Court of Appeal.  Weightmans refused to agree.  Thompsons then faxed this Tribunal seeking the same extension; but since it was by then 2.30 p.m., and it was unrealistic to expect an immediate decision, they decided to lodge the Notice in the state that it was then in, which counsel had not been able to finalise.  Having protected their formal position in that way, they applied the next day for leave to lodge an Amended Notice of Appeal incorporating some further passages. Weightmans opposed that application in a detailed letter.  The Registrar allowed the application but ordered the Claimants to pay £350 towards the costs of Weightmans’ unsuccessful opposition. 

32.	The Claimants have appealed against that order.  The appeal is by way of rehearing. I allow it.  The sequence of events originated in Weightmans’ refusal to agree to a 24-hour extension on 11th January.  I need not stigmatise that refusal as positively unreasonable; but I am bound to say that it seems to me to have been needlessly aggressive.  Small indulgences of this kind between solicitors, where no conceivable prejudice is done to their clients, are commonplace in civil litigation, and no sufficient reason for Weightmans’ attitude was shown in the present case.  I would not award the Authority the costs of an unsuccessful opposition to an application only rendered necessary by its own solicitors’ rigidity.