Gordon & Ors v Ford Motor Company, Court of Appeal - United Kingdom Employment Appeal Tribunal, June 12, 2009, [2009] UKEAT 0089_09_1206

Resolution Date:June 12, 2009
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Gordon & Ors v Ford Motor Company
 
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Copyright 2009

Appeal No. UKEAT/0089/09/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 June 2009

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

1) MR D A GORDON

2) MR R S NIJJOR

3) MR J BISSEMBER APPELLANTS

FORD MOTOR COMPANY RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0089/09/ZT

APPEARANCES

UKEAT/0089/09/ZT

SUMMARY

PRACTICE AND PROCEDURE

Striking-out/dismissal

Costs

DISABILITY DISCRIMINATION

Direct disability discrimination

Strike out under Employment Tribunal Regulations 18(7)(b). Employment Tribunal correctly proceeded on basis of Counsel's pleaded case and held that claims of direct disability discrimination were misconceived. Partial costs of Respondent ordered. No error of law.

UKEAT/0089/09/ZT

- 1 -

HIS HONOUR JUDGE PETER CLARK

  1. This case has been proceeding before the Stratford Employment Tribunal. There were three separate claims by a Mr Bissember, Mr Gordon and Mr Nijjor, all employees of the Respondent, Ford Motor Company against their employer. All remain in that employment. The claims were combined for present purposes although I understand that further Forms ET1 were lodged and an issue arose as to whether those new claims should be combined with these claims. I shall return to that point later.

  2. At a Pre-Hearing Review, followed by a Case Management Discussion (CMD) held on 17 July 2008, the original three claims were considered by Employment Judge Duncan; and it is relevant to note in his Case Management Discussion summary dated 29 July that, at paragraph 4, he identified the complaints of disability discrimination to be brought under s3A(5) of the Disability Discrimination Act 1995 (`DDA'), that is, claims of direct discrimination.

  3. I should say that I am no longer concerned with the claims of Mr Bissember which have now fallen by the wayside.

  4. Following that CMD the Respondent applied for an order striking out the relevant claims, those of Messrs Gordon and Nijjor, on the grounds that neither had any reasonable prospect of success (see Rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004); alternatively, it was contended that the Claimants should be ordered to pay a deposit as a condition of taking any further part in the proceedings. A further Pre-Hearing Review was ordered to consider, in particular, the strike out application. That hearing took place before Employment Judge Laidler sitting alone on 7 November 2008. For the purpose of that hearing both sides' representatives, Mrs Scott for the Claimants and Ms Omambala for the Respondent, lodged detailed written skeleton arguments.

  5. By a Judgment with reasons promulgated on 23 December Judge Laidler struck out the relevant claims under Rule 18(7)(b) and ordered the three Claimants to each pay £1,666.66, a total of £5,000, towards the Respondent's costs, which were estimated at a little over £21,000 exclusive of VAT. It is against those decisions, with the permission of HHJ Richardson on the paper sift, that the appeals of Mr Gordon and Mr Nijjor now come before me for a full hearing.

    Background Facts

  6. As the Court of Appeal made absolutely clear in N. Glamorgan NHS Trust & Ezsias [2007] IRLR 603, applying the well-known observations of Lords Steyn and Hope in Anyanwu v South Bank Students Union [2001] IRLR 305, paragraphs 24 and 37 respectively, set out at paragraph 31 of the judgment of Maurice Kay LJ, where there is a crucial core of disputed facts, particularly in a discrimination claim, a hearing of the evidence and resolution of factual issues is required. In such circumstances a strike out order will rarely be appropriate on the basis that the claim has no reasonable prospect of success.

  7. It is, therefore, important to identify the facts relied on by the appellant Claimants in this case in support of their claims of direct disability discrimination.

  8. First, it is now common ground that each is disabled within the meaning of sl, DDA. Mr Gordon suffers from chronic arthritis and Mr Nijjor from ulcerative colitis. Both are long-serving employees of the Respondent at its Dagenham...

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