England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE KEENE: Mr Paterson seeks leave to appeal from a decision of the Employment Appeal Tribunal dismissing his appeal against a decision of an Employment Tribunal sitting at Newcastle-upon-Tyne. Mr Paterson is not here today, nor is he represented. He has sent a letter dated 6th October 2001 indicating that ill-health prevents his attendance and asking that the hearing proceed in his absence, having regard to the documents which have been submitted. I make it clear that I have read the relevant documents.
2. Mr Paterson was employed by the respondent council from 1978 until 11th May 1998. He subsequently lodged an originating application alleging unfair dismissal and breach of contract. The brief history of events leading to his dismissal was that in 1994 Mr Paterson began alleging that there was a conspiracy against him, that there was malicious gossip about him within the council and, subsequently, that his telephone was tapped. Relations between him and other members of staff became difficult. He raised a grievance but this was rejected.
3. Concerns arose over his mental health and during 1997 medical opinion was taken from a number of medical practitioners. One doctor, Dr Black, saw the appellant on 2nd December 1997 and formed the view that there was a degree of paranoia in his description of earlier events. The consensus of medical opinion was that he was suffering from a stress-related disorder with anxiety and depressive symptoms.
4. After a period of counselling organised through his employer, Mr Paterson indicated through his union representative that he would consider medical retirement. At a meeting on 8th May 1998, which the appellant attended with his union representative, he reluctantly accepted he was not fit for employment and agreed to accept early retirement. He was medically retired in circumstances amounting to a dismissal on 11th May 1998.
5. The Employment Tribunal considered the provisions of section 98 of the Employment Rights Act 1996 and concluded that the reason for Mr Paterson's dismissal was his capability, which was a potentially fair reason under section 98(2)(a). They then went on to consider the issue of the fairness of the dismissal having regard to the appellant's medical condition and to the enquiries made and the procedures used by the council prior to its decision to dismiss Mr Paterson from its employment. The unanimous decision of the Employment Tribunal was that the dismissal had been fair and that there had been no breach of his contract with the council. They said this:

"It is clear to us that Mr Paterson was unfortunately suffering from a severe mental illness which he perceived, rightly or wrongly to have been caused by the actions or inactions of the respondents. It is not our job to investigate whether or not such actions did cause Mr Paterson's illness. What we have to consider is whether or not the procedures adopted by the respondents were such that the dismissal was fair. The respondents provided a lot of care to the applicant. Mrs Burdis spent a lot of time with the applicant from 1994 discussing his problems. When matters came to a head, Mr Paterson having to take sick leave because of his illness the respondents provided care through their occupational health physician and their own psychologist. They were unable to help Mr Paterson. To his union representative Mr Paterson agreed to take early retirement. That is he agreed to be dismissed by the respondents so that he could receive early retirement pay. We cannot find that there was anything wrong in the procedures adopted by the respondents."

6. The Employment Appeal Tribunal to whom Mr Paterson appealed concluded that the Employment Tribunal had correctly directed itself in deciding that it was not for them to investigate whether his medical condition had been caused by the alleged behaviour of the respondent. That was following the EAT decision in London Fire and Civil Defence Authority v Betty [1994] IRLR 384. The EAT also dealt with a number of other grounds advanced.
7. In his Appellant's Notice to this court Mr Paterson alleges that there was a wilful misadministration of the council's grievance procedure. That however is a matter on which the Employment Appeal Tribunal made a finding of fact against him and it raises no issue of law for the Court of Appeal to bring into play section 37(1) of the Employment Tribunals Act 1996. It is then contended that there has been no resolution of the question of whether there was a breach of contract by the council. But the Employment Tribunal found that there had been no breach of contract. Moreover, as the EAT pointed out, it was already established that Mr Paterson had been dismissed, so the issue was one of the fairness of the dismissal. There is a complaint that the Employment Tribunal allowed the council to amend its notice of appearance so as to deny dismissal. This is said to have indicated bias on the part of the Employment Tribunal. I for my part can see no evidence of bias. The Tribunal reached a procedural conclusion on the amendment application and whatever the merits of the decision, it is impossible to deduce bias from it. There are other allegations of bias in the appellant's notice both against the Employment Tribunal and the EAT. None of them are shown to have any substantive basis.
8. In all those circumstances there is no realistic prospect of this appeal succeeding. I therefore have decided to dismiss this application.
Order: Application dismissed.