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Johnson v AWE PLC, Employment Appeal Tribunal, 27 June 2008

8 October 2008
The issues

Estoppel – disability discrimination – whether Claimant entitled to issue claim in employment tribunal and in County Court out of same facts.

The facts

The Claimant had had a road traffic accident in August 2001. He was suffering from ankylosing spondylitis before the accident, the effects of which was to exacerbate that condition. He issued a claim for damages for personal injuries against the other driver on the 10th August 2004. On the 13th May 2003 he injured his spine in an incident at work when a window fell onto his head. A second personal injury claim was issued against his employer, the Respondents in the tribunal, on the 28th April 2006. The Claimant was medically retired on the 23rd February 2007. He claimed he intended to work until his 65th birthday, on the 8th March 2009. On the 14th May 2007 he issued a claim in the employment tribunal including, amongst other claims, a claim for disability discrimination.

In September 2007 both personal injury claims were settled for a total of £30,000.00. The Consent Order recorded that the payments were in full satisfaction of the claim for damages and provided a discharge to both Defendants in respect of any further liabilities in relation to the Claimant’s causes of action. Those causes of action were, in the case of the road traffic accident, negligence and in the case of the window injury, negligence and / or breach of statutory duty.

In the employment tribunal the Claimant argued that the employer had failed to comply with its duty under the Disability Discrimination Act in that it would have been possible, by making adjustments to the job he had been doing, or by finding alternative work for him, for him to have been kept on in employment until his 65th birthday. The Employment Judge below concluded that the issue of reasonable adjustment had already been the subject of litigation and therefore issue estoppel applied and that the claim should be struck out.

The former employee appealed. Before the Appeal was heard the parties came to an agreement that the Appeal should be allowed. The matter however was listed for Hearing because the proposed Order involved the Appeal Tribunal holding that the decision at first instance contained an error of law.

The decision

The Employment Tribunal erred in law in concluding that the doctrine of issue of estoppel required it to dismiss the Claimant’s claim under 3A(2) of the Disability Discrimination Act 1995. This was on the basis that there was insufficient overlap between the issues raised in the Appellant’s County Court proceedings for personal injury and the ingredients of a reasonable adjustments claim in the Tribunal. The Appeal would be allowed and the claim remitted to the Employment Tribunal which at first considered the issue of liability, that is whether the Respondents had failed to comply with their duty under Section 3A(2) of the Disability Discrimination Act 1995 to make reasonable adjustments.

If liability was established the Tribunal should go on to make an award for injury to feelings and consider whether the claim for loss of earnings and pension from 2007 to 2009 was established as a matter of law and fact. If it did reach that stage it would not be entitled to make an award of compensation for loss of earnings or pension insofar as either of those items were, in the view of the Tribunal, already compensated in the County Court proceedings in the two personal injury actions or were the subject of issue estoppel arising out of the proceedings between the parties and the County Court in the second personal injury action.

Appeal allowed.

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