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 EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE CLARK PRESIDING)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 5 April 2001

1. LORD JUSTICE PETER GIBSON: Trevor Stronach seeks permission to appeal from the order made on 22 January 2000 by the EAT at a preliminary without notice hearing of Mr Stronach's appeal from the decision promulgated on 16 June 2000 of an Employment Tribunal sitting in Birmingham. By that decision, the tribunal dismissed Mr Stronach's various complaints. The EAT, by its order, dismissed the appeal and refused permission to appeal.
2. Mr Stronach was employed by Walsall Metropolitan Council ("Walsall") from 6 June 1994 until 12 April 1999. He is a Burgher from Sri Lanka, where he was born in 1951. He worked for Walsall as a manager of a team of social workers. He was a union shop steward and, as such, supported a black and disabled member, Eden Craig, in a complaint of race discrimination.
3. Between 10 December 1997 and 12 January 1998, and from 26 January 1988 to 2 February 1998, Mr Stronach was off sick complaining of stress. On 4 February he commenced a further period of absence through sickness. Following a welfare visit on 18 February, Walsall's occupational health physician, Dr Chalkley, certified him unfit for work. Another welfare visit followed on 7 April 1998.
4. Mr Stronach applied on 17 April for medical redeployment. However, that application was not received until the middle of May. He was then subject to the medical redeployment procedure of Walsall. As part of that he applied for an alternative position with Walsall. In July 1998 he was to be interviewed for an alternative position pursuant to the medical redeployment scheme, but the interview was not completed because Mr Stronach withdrew from it and so he excluded himself from that post. The tribunal came to the conclusion that that withdrawal was without justification.
5. To go back in time, in April he was told that on 29 April 1998 his entitlement to sick pay at the full rate would end and that he would, thereafter, receive half pay. At the end of that month, his GP said he was fit for work, but he was asked to stay at home until medically examined by Dr Chalkley. On 23 July Dr Chalkley reported that Mr Stronach was unfit to return to work. On 20 August his manager handed him a letter terminating his employment from 20 October 1998 if, in the interim, he had not secured redeployment.
6. On 5 August, Walsall had raised with Mr Stronach whether he would like to consider the possibility of ill health retirement. On 9 August he had indicated his wish to retire on the grounds of ill health. The decision to terminate his employment was rescinded, but, on 23 November 1998, Mr Stronach learned that Dr Chalkley could not support ill health retirement.
7. On that day Mr Stronach presented his first originating application ("the first complaint"). He listed his complaints against Walsall as racial discrimination, disability discrimination, health and safety at work, employment rights/trade union activities.
8. In January 1999 Mr Stronach was informed that his entitlement to any sick pay whilst absent from work would end on 14 March. Walsall decided to terminate his employment, as he was informed on 8 April 1999. That was confirmed in writing four days later, the effective date for termination of his employment. Mr Stronach appealed by the internal appeals procedure against the decision to terminate his employment, but that appeal was dismissed. He also appealed to the West Midlands Pension Fund against the decision not to retire him grounds of ill health. That appeal succeeded.
9. On 9 July he presented his second originating application ("the second complaint") listing his complaints as racial discrimination, disability discrimination and unfair dismissal.
10. Both complaints were resisted by Walsall. They were heard over seven days by the tribunal. The tribunal had both written and oral evidence put before it. Mr Stronach gave oral evidence on his own behalf whilst eight witnesses gave oral evidence for Walsall. Walsall was represented by counsel; Mr Stronach appeared in person.
11. The tribunal's extended reasons contain a lengthy detailed and careful account of the facts which they found, the law and the rival submissions. The tribunal started its consideration with the first complaint. It noted that all the acts referred to took place prior to the three months limitation period under each of the relevant Acts, so that the tribunal had no jurisdiction unless it extended time. Although the tribunal go into the allegations made by Mr Stronach and the rival contentions on those allegations in detail, I will not take up time with them because the tribunal, in the exercise of its discretion, refused to extend time. It considered that it was neither just nor equitable to extend time. It also held that it was reasonably practicable for Mr Stronach to have submitted his application within the prescribed period, that being the test under the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of complaints of action short of dismissal on grounds related to union membership or activities. Accordingly, the tribunal held that any matter of complaint prior to the 24 August 1998 was out of time. Nevertheless, the tribunal went on to hold that, even if the complaint had been in time, his complaint would not have succeeded because he had failed to establish that he was subjected to unlawful discrimination, and/or victimisation, or subject to action short of dismissal because of his trade union activities.
12. The tribunal then turned to the second complaint. It found that Walsall had established that the reason for his dismissal was his capability through ill health and that his dismissal was fair. His dismissal was not due to his race, nor to his trade union activities. Walsall accepted that Mr Stronach was and is a disabled person within the Disability Discrimination Act 1995. The tribunal considered Mr Stronach's argument that Walsall had a duty under section 6(1) of that Act to take reasonable steps to prevent him being placed at a substantial disadvantage in comparison with persons who are not disabled, but it said that there were no adjustments which could have been made to enable Mr Stronach to continue working, because his health was not such for a return to work to be considered. Accordingly, it found no discrimination on grounds of his disability.
13. On Mr Stronach's appeal to the EAT, the EAT dismissed it, appeal holding that the appeal raised no arguable point of law. That, of course, is the relevant test to be applied in relation to an appeal to this court as well.
14. Mr Stronach now seeks permission to appeal. He appears in person. He has addressed me with moderation and courtesy, and he has plainly taken a great deal of trouble to prepare the bundle which has been put before me. I am grateful to him for that. He has advanced a number of grounds on which, he says, the tribunal erred in law.
15. His main ground is based on a sentence in paragraph 68 of the tribunal's decision where, after referring to the redeployment policy of Walsall set out in various documents, the tribunal said:

"By reference to the procedures referred to, there are indeed options available to the respondents and it is possible that having regard to the applicant's deteriorating health during 1998 they may have decided to handle his case differently which Mr Pitcher [the manager] acknowledged in the course of his evidence."

16. The tribunal then go on to say:

"However, what the tribunal has to consider is whether the applicant was treated differently and less favourably by the respondents by reason of his race and/or disability and/or trade union activities in the period leading up to and including the termination of his employment."

17. Mr Stronach submits that the earlier sentence which I cited shows that the tribunal was finding that Walsall had been in breach of its duties under section 6(1) and that detriment was incurred by Mr Stronach in consequence. I do not see that that can be spelt out of that sentence. As I read it, what is being said is that Walsall, having tried medical redeployment, unhappily unsuccessfully because of Mr Stronach's withdrawal from the interview, had decided that because of Mr Stronach's deteriorating health, there was nothing more it could do and could only dismiss him. The tribunal accepted Walsall's submission that, in the circumstances of Mr Stronach, no reasonable adjustment could assist. That is in accord with paragraph 6.21 of the Disability Discrimination Code of Practice which specifically acknowledges that the dismissal of a disabled person can be justified when no reasonable adjustment could alter the reason for dismissal. That, as it seems to me, is a conclusion which was open to the tribunal of fact.
18. I find it impossible to see how Mr Stronach could, even arguably, succeed on an appeal on this ground. It was common ground that Mr Stronach had been seeking early retirement from August 1998. Mr Stronach says that Walsall could and should have done other things to support him in the period prior to that. As I have indicated, the problem is that he is out of time in making complaints in relation to matters before 24 August 1998.
19. Mr Stronach also submits that the tribunal must have erred in law in relation to deciding that the first complaint was out of time. I cannot see any hope of success on this ground in view of the discretion conferred by Parliament on tribunals if they are to extend the comparatively short period of time allowed for complainants to present their complaints to tribunals.
20. Mr Stronach raises further grounds of complaint in relation to how other white comparators were treated. He submits that he was treated differently and that thereby he had shown that there was discrimination. He submits that the tribunal erred in its conclusion that there was no such discrimination. I am afraid that that is an attempt to challenge findings of fact made by the tribunal when it really cannot be shown that the tribunal was perverse in reaching its conclusion. Suggested comparators always have to be examined with some care and the particular circumstances of each individual carefully considered. I have no reason whatever to think that the tribunal failed in that duty. The tribunal was clear in saying more than once that it was quite unable to find that there was any uneven treatment as between Mr Stronach and those comparators.
21. Similarly, his complaint about being subjected to action short of dismissal because of trade union activities has no prospect of success on an appeal. In his IT1 in the first complaint, he had stated specifically that victimisation occurred as a result of assisting Mr Craig from September 1997 to January 1998 with his grievances. Not only is a complaint about that out of time, but the tribunal further found, as a fact, that it was not because of his trade union activities that he was treated as he was.
22. Mr Stronach also says that Mr Phillips did not tell the truth to the tribunal in saying that it was not just a matter for his decision whether Mr Stronach should be retired on the ground of ill health. The tribunal said that the decision depended on medical evidence and that in November 1998 Dr Chalkley was unable to support early retirement. In my judgment it is plain that Mr Phillips could not take a decision without medical evidence. He had medical evidence in the form of Dr Chalkley's opinion and it has, therefore, not been shown to me that there is any arguable case that Mr Phillips lied or could not reasonably have taken the attitude which he did.
23. Mr Stronach challenges Dr Chalkley's independence, relying on a letter from the West Midlands Pension Fund that there should have been a certificate from an independent medical officer. As I have said, Mr Stronach, happily, has been able to succeed in his appeal against that decision not to retire him on grounds of ill health. But, on this case, I am concerned with the fairness of the dismissal. There is, in my judgment, no doubt that it was because of Mr Stronach's incapability through his ill health that he was dismissed. That, to my mind, does not present a ground of appeal with any realistic prospect of success.
24. In truth, Mr Stronach is seeking to challenge findings of fact made by the tribunal of fact when he lacks the material which would enable such an attack to succeed. I have the greatest sympathy with Mr Stronach in his present circumstances but, despite that sympathy, I am afraid that I have to assess the question of whether permission to appeal should be granted on the grounds of whether he has a real prospect of success on an appeal. For the reasons which I have given, I am afraid I do not see that he has. Nor is there any other compelling reason why this appeal should go ahead. Accordingly, I am afraid that I must dismiss this application.
Order: Application dismissed.