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In the information contained in the claim form she makes various allegations against the Second and Third Appellants. The details of that claim are unnecessary for the purposes of this judgment. The Third Appellant is an area manager for the Group. Her work is based in England, but at the relevant time she had responsibility for areas which included Jersey.
The claim form was sent to the address given by the Respondent for the First Appellant, but that address was in fact out of date. It was not sent to the Employer, nor was it sent to the Second and Third Appellants. That claim form was ultimately received by the senior employee relations adviser for the Group. Owing to a mistake in connection with the time for responding and a subsequent understanding that the Respondent had dropped her Tribunal claim and was engaging with internal processes of the Group, no action was taken to lodge a response to the claim on behalf of the Appellants.
The claim form was indeed never sent to the Second and Third Appellants. In the absence of a response from any of the Appellants, judgment was entered by the Tribunal on 10 th January, , and that judgment was published online the following day. Lawyers acting for the First Appellant drew this to the attention of the First Appellant, and an application was made for the default judgment to be set aside. This led to the Deputy Chairman's decision on 21 st January to treat that application as an application for leave to appeal as in his judgment he considered that a determination under Article 12 of the procedure order was a judgment, and not a case management order, and was therefore not amenable to reconsideration in the interests of justice under the Tribunal's powers of case management.
However, she was advised by another employee of the Group that the Respondent was pursuing an internal grievance procedure and therefore not intending to pursue the Tribunal claim; hence she took no steps on her return to the office. To continue reading Request your trial Subscribers can access the reported version of this case. You can sign up for a trial and make the most of our service including these benefits.
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| Forex trading courses in india | The details of that claim are unnecessary for the purposes of this judgment. An extension of time was given to the Respondent on 2 nd May to file her contentions and initial authorities. For those travelling by public transit, there are two train stations. Subscribers are able to see the revised versions of legislation with amendments. The Employer ought to have been named as the correct respondent to the claim in the Tribunal. |
| Ladbrokes betting and gaming ltd ha2 7jw | An extension of time was given to the Respondent on 2 nd May to file her contentions and initial authorities. William Hill to be found at Station Road. The Employer ought to have been named as the correct respondent to the claim in the Tribunal. Near to High Road, there is a car park on Preston Road, as well as facilities at the nearby Waitrose and Homebase branches. It was brought into Greater London in the mids, and was previously a borough in Middlesex. |
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This is achieved by subsection 2 , which is a deeming provision. If diabetes control is improved then the symptoms improve and as such this is not a long-term effect if appropriately managed. These do not usually occur, however, for at least years after developing diabetes. Earlier, Dr Hurel had referred to the possibility of complications developing. That was, therefore, enough to reach the conclusion that there was a progressive condition as a result of which there was an impairment that had an effect on the ability to carry out normal day-to-day activities and that the right way to look at it was that the effect was not at the time substantial but the evidence was that it might deteriorate in the future.
Had the matter stopped there, it would, submitted Mr Young, have been quite apparent that the Judge had misdirected himself when he came to his conclusion, at paragraph 15, that there was only a small possibility of the condition progressing. It is of course common ground that Employment Judge Gaskell in paragraphs 13 and 15 and in his analysis of progression was reaching a conclusion not open to him on the factual material when, for whatever reason, he reached the view that the progression of type 2 diabetes is that it becomes at some point type 1 diabetes.
Both parties accept that is not what Dr Hurel says, and neither is it medically correct. Nevertheless, Mr Young does not base his submissions on that error. Dr Hurel has not in fact expressed any very clear view, if he has expressed a view at all, on the extent to which the longer-term effects of diabetes would have an adverse effect on day-to-day activities.
But in his letter Dr Hurel does appear to have expressed a view. What impact would his condition of diabetes have on the Claimant if he was not undergoing the relevant treatment? The acute symptoms of hyperglycaemia listed above are likely to have been more severe had he not been on the medication.
It is in that context that the questions in the letter of 11 March are raised. So too must be the second answer, because the second question is a corollary to or follow-on from the first question. Without population screening many patients with diabetes would remain undetected in the early stages up to five years as the symptoms are subtle and go unnoticed. The problem with that submission is that in the letter Dr Hurel is not considering 5 years later — that is plain from his answer to question 2 — nor is he considering years later.
He is considering the impact at the present time or, rather, in the period under consideration between November and November The second ground of appeal is a criticism of the conclusion arrived at by Employment Judge Gaskell at paragraph 15 that there was only a small possibility of the condition progressing.
It is in this context that the error is made by Employment Judge Gaskell that the progression would be to type 1 diabetes, but, on the terms of engagement proposed by Mr Young, he is prepared to treat that as a progression to the more significant symptoms of type 2 diabetes as described by Dr Hurel in his report in his answer to the second specific question see pages 87 and 88 of the appeal bundle, a passage to which I have already referred.
The possibility of progression is clearly to be derived from the answer given the degree of progression. The scale of progression cannot be derived either from the main context, which is that the longer-term effect is to develop the conditions, or from the fact that is all the more so when the diabetes is poorly controlled. In neither sense of the syntactical structure of that sentence can one derive the proposition that this is a small possibility.
It seems to me that this must clearly be what Employment Judge Gaskell has done. Indeed, even if it is a summary of what Dr Hurel says, in order for his views on the matter to be relevant to paragraph 8 2 there has to be some medium through which those views can be applied. Looking at the language of the Schedule and the subparagraph, it is not immediately apparent to me that one should include the concept of reasonable conduct on the part of the allegedly disabled person within paragraph 8 2.
At first sight, it looks as though it is simply a question of causation. The question is this: is the condition likely to result in his having an impairment? Mr Hills submits that that still leaves open the question of whether even if this is a small possibility that is something likely to happen. That is an entirely understandable approach to concepts of predicting the future, but I do not regard it as consistent with the judgment of the House of Lords in Boyle.
What is at issue is not whether something is likely to occur by reference to any definite percentage or proportion of the population in whom the condition may occur, recur or deteriorate. It is, as explained by the House of Lords, an issue of whether a doctor would consider there is a chance of something happening. Consistent with the approach of Lord Rodger, it does not seem to me that the way in which a doctor would approach a condition that might deteriorate would be on the basis as to there being just a very small chance of it deteriorating or there being a small chance of it deteriorating but on the basis as to whether in terms of medical science in any given population it was a risk to which that population was exposed and that some proportion of that population would suffer a deterioration.
In the terms used by Employment Judge Gaskell, it seems to me that even if there is a small possibility of deterioration in a population that is enough to make it likely that it might result in the particular individual having such an impairment.
Moreover, it seems to me that one must be very careful with the concept of the effect of medical treatment. Mr Hills submits that if somebody could take steps that would result in the risk of future deterioration either being eliminated or very much reduced then if they failed to take steps, what the guidance of B7 envisages is that one will take account of their behaviour and if they have failed to use what is called in the guidance a coping or avoidance strategy then that person must be presumed not to be disabled.
He says that the way in which Employment Judge Gaskell has interpreted Dr Hurel is that the chances are that if the Appellant modifies his lifestyle, exercises and is careful in terms of diet then his condition is not likely to result in the impairment having a substantial adverse effect in the future and if he does not modify his lifestyle then that is unreasonable conduct on his part.
That is how paragraph 8 2 is intended to work. Plainly, looking at paragraphs 14 and 15, that is how Employment Judge Gaskell approached this matter. Mr Young pointed out the wording of paragraph B10, which I referred to earlier, and said that meant the possibility of somebody being unable to keep to a particular regime notwithstanding its health-giving benefits is something that ought to also be taken into account and this was clearly so in the case of the Appellant.
This is how the words of Dr Hurel should be interpreted. In ground 3, it is said that the Judge erred by taking into account wrong lifestyle choices on the part of the Appellant and these were not measures under paragraph 5, as was demonstrated by the Metroline Ground 4 simply makes the general proposition that there was inadequate evidence for the finding at paragraph 14 that there would be no adverse impact on the ability to carry out normal day-to-day activities.
It seems to me that this case has been tackled by Employment Judge Gaskell on the basis of the material that he had before him. It does not seem to me, however, that he has clearly enough had in mind what it was that he actually had to decide. In my view, it is not the case that absent medication the possibility of a deterioration is a small possibility. On the contrary, it is not clear to me exactly what Dr Hurel is saying about the future.
On my analysis, he has answered the questions that he has been asked, but he has mixed together the present and the future. What, in my judgment, Employment Judge Gaskell needs to assist him is a clear view as to what is the progression of type 2 diabetes.
It is plainly an error, even though Mr Young is prepared to proceed on the basis that it is not, that Employment Judge Gaskell thought that the progression was from type 2 diabetes to type 1 diabetes. It is possible to construct the progression, as Mr Young has done, from the medical material provided by Dr Hurel, but whether one is constructing it accurately or not is something that I am concerned about.
It seems to me that this is a process, understandably entered into with the best of motives by both the parties and Employment Judge Gaskell but it deprived Employment Judge Gaskell of the clarity that was necessary for him to make a proper and reasoned decision within the parameters set out in section 6 and Schedule 1.
I do not propose to decide the extent to which any issue under paragraph 8 2 can be decided by taking account of the guidance in paragraph B7, but what, in my judgment, has gone wrong in this case is that Dr Hurel, who is no doubt a busy man, has either not been asked the right questions or the whole process would have benefited from Dr Hurel being present so that he could have answered clearly the questions that might have arisen. Neither of those occurred and I have reached the conclusion that this was an unsound analysis by Employment Judge Gaskell, for which he is blameless but which should be undertaken again by either a much clearer set of questions being addressed in terms of the Schedule to Dr Hurel or by Dr Hurel coming to the Tribunal, giving evidence and being cross-examined.
I would allow this appeal on ground 1. It seems to me that the learned Judge has not addressed himself properly to the question of progressive condition. It does not seem to me that the answers in the letter are answers that relate to a progressive condition, and it seems to me that the matter has been left in essence with the progressive condition being analysed in terms of a particular past period of time, as I have endeavoured to explain earlier in this Judgment.
That seems to me to be erroneous in approach. I would also allow the appeal on the basis of ground 2 that a small possibility is not what is actually being stated in the evidence by Dr Hurel. I do not know whether the matters raised by grounds 3 and 4 have actually amounted to errors, because it seems to me that the only error is that the evidential material was not sufficiently clear.
I do not wish to make a decision in principle that one cannot take account of the reasonableness of the conduct of the particular person whose disability is under scrutiny, and I do not think that it is right to reach a conclusion that there is inadequate evidence in relation to ground 4, except insofar as I regard the evidence as being sufficiently unclear at the present time in any event.
The Third Appellant is an area manager for the Group. Her work is based in England, but at the relevant time she had responsibility for areas which included Jersey. The claim form was sent to the address given by the Respondent for the First Appellant, but that address was in fact out of date.
It was not sent to the Employer, nor was it sent to the Second and Third Appellants. That claim form was ultimately received by the senior employee relations adviser for the Group. Owing to a mistake in connection with the time for responding and a subsequent understanding that the Respondent had dropped her Tribunal claim and was engaging with internal processes of the Group, no action was taken to lodge a response to the claim on behalf of the Appellants.
The claim form was indeed never sent to the Second and Third Appellants. In the absence of a response from any of the Appellants, judgment was entered by the Tribunal on 10 th January, , and that judgment was published online the following day. Lawyers acting for the First Appellant drew this to the attention of the First Appellant, and an application was made for the default judgment to be set aside. This led to the Deputy Chairman's decision on 21 st January to treat that application as an application for leave to appeal as in his judgment he considered that a determination under Article 12 of the procedure order was a judgment, and not a case management order, and was therefore not amenable to reconsideration in the interests of justice under the Tribunal's powers of case management.
However, she was advised by another employee of the Group that the Respondent was pursuing an internal grievance procedure and therefore not intending to pursue the Tribunal claim; hence she took no steps on her return to the office. To continue reading Request your trial Subscribers can access the reported version of this case. You can sign up for a trial and make the most of our service including these benefits. Request your trial location-globe-view Over Countries Search over million documents from over countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Subscribers are able to see a list of all the cited cases and legislation of a document. Subscribers are able to see a list of all the documents that have cited the case. Subscribers are able to see the revised versions of legislation with amendments. Subscribers are able to see any amendments made to the case. Subscribers are able to see a visualisation of a case and its relationships to other cases.
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