Noor v Home Office (Border & Immigration Agency), Court of Appeal - United Kingdom Employment Appeal Tribunal, December 03, 2008,  UKEAT 0252_08_0312
|Resolution Date:||December 03, 2008|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Noor v Home Office (Border & Immigration Agency)|
Appeal No. UKEAT/0252/08/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 2 October 2008
Judgment handed down on 3 December 2008
HIS HONOUR JUDGE ANSELL
MR S NOOR APPELLANT
HOME OFFICE (BORDER & IMMIGRATION AGENCY) RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE: Estoppel or abuse of process
Tribunal correct in applying issue estoppel to claim of disability no new facts had emerged since previous tribunal decision that he was not a disabled person.
HIS HONOUR JUDGE ANSELL
This is an Appeal from a decision of a Reading Employment Tribunal chaired by Mr Soulsby who, following a hearing on 13 November 2007, determined in a judgment sent to the parties on 18 January 2008 that Mr Noor's claim for disability discrimination should be dismissed. They decided this issue on two grounds, firstly because in previous proceedings determined in July 2005 a tribunal had decided that Mr Noor was not a disabled person. The Tribunal ruled that the doctrine of issue estoppel applied so that the Tribunal could not hear the same issue.
Secondly, they determined that even if the doctrine of issue estoppel did not apply the facts before the Tribunal showed that Mr Noor was not a disabled person within the mean of Section 1, Disability Discrimination Act 1995. The Tribunal also determined that the claim was misconceived and that it was unreasonable for Mr Noor to present this claim and ordered him to pay a sum of £500 contribution towards the Agency's costs. Mr Noor also appealed an interlocutory decision of the Registrar of the Court refusing leave to introduce fresh evidence. In a Decision dated 17 September 2008 the Registrar determined that the application to introduce fresh evidence was misconceived, and did not address the principles set out in paragraph 8 of the EAT Practice Direction.
Leave for this full hearing had been given by His Honour Judge Burke QC at a Rule 3(10) hearing in respect of the grounds of appeal set out in an Amended Notice of Appeal.
The background facts are that Mr Noor has worked for the agency previously known as the Immigration and Nationality Directorate since 12 January 2004 and his employment is continuing. He claimed on the basis that the rejection of his application for promotion following an assessment on 29 January 2007 was unlawful discrimination contrary to the Disability Discrimination Act 1995.
The Tribunal noted that Mr Noor had twice brought proceedings against the Agency and in particular on 11 July 2005 the Tribunal had decided that he was not a disabled person. On that occasion the evidence showed that Mr Noor suffered from dyslexia but it did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.
The judgment recorded that the Tribunal in 2005 had considered various assessments and psychological reports which confirmed that although he was dyslexic he was not seriously affected by the dyslexia. In paragraph 3.4 the Tribunal noted that Mr Noor's evidence before them set out as, `Reading and de-coding words, missing out words, necessitates the use of coloured slides to assist reading, creates a problem of distinguishing between left and right, results in him being easily distracted and lacking concentration and causes problems with his speech being a stammer,' were factors before the Tribunal in 2005.
The Tribunal noted that there was no up to date psychological or other expert assessment. There was a further report from an occupational health specialist dated 11 November 2007 but it did not give any detail as to the severity of the dyslexia and no indication as to how in the specific case of Mr Noor it might affect his ability to carry out normal day-to-day tasks. The Tribunal also noted in paragraph 3.6 his considerable academic achievements, literary and reading skills and also noted that recent appraisals at work showed that his own report writing skills indicate a very high standard.
The Tribunal concluded that the issue they were dealing with was the same issue as had been considered by the 2005 Tribunal involving the same parties and substantially the same facts. The Tribunal recorded that no new evidence was available that would not have been available at...
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