England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Serota QC
UKEATPA/097/09/DA

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2010

Lord Justice Rimer :

Introduction

1. This is a renewed application by Mrs Cherry Clarke for permission to appeal against an order of the Employment Appeal Tribunal dated 23 March 2010 made by His Honour Judge Serota QC, sitting alone. Mrs Clarke presented the application in person.
2. Mrs Clarke had brought employment tribunal claims against her former employer, Zurich UK General Services Ltd ('Zurich'), for race discrimination, disability discrimination, unfair dismissal and breach of contract. After a hearing before the Birmingham Employment Tribunal (Employment Judge Gaskell, Mr J. Brown and Mr W.J. Osborne) occupying 13 days spread between 2 June and 14 November 2008 (ten days in June and three in November), the tribunal dismissed all her claims for the reasons it sent to the parties on 9 February 2009. Following a further hearing on 9 June 2009, at which Zurich sought an order for costs against Mrs Clarke, the tribunal ordered her to pay the whole of Zurich's costs of her failed claims and directed their detailed assessment. The tribunal sent its reasons for that decision to the parties on 30 July 2009. Mrs Clarke was represented at the hearing by counsel (Ms Chute) during the ten hearing days in June 2008, but for the remaining three days in November 2008 she acted in person, as she has since.
3. Mrs Clarke sought to appeal against both orders to the Employment Appeal Tribunal. As those familiar with employment law will know, the appeal tribunal has no jurisdiction to hear appeals on issues of fact decided by an employment tribunal. Its jurisdiction is confined to hearing appeals on arguable errors of law. It will be an error of law for a tribunal to make a finding of fact when there is no evidence to support it; or to make a finding which can be shown to be perverse, although as is also well-known an attempt to establish perversity poses enormous difficulties. A litigant's subjective assessment and assertion that a tribunal's finding is perverse is often simply a reflection of his disagreement with the finding, whereas the making good of a case that it is perverse ordinarily involves the scaling of the steepest of mountains. Subject to perversity considerations, provided there was evidence on the basis of which a tribunal could make the findings of fact that it did, there will be no error of law in its making of them and the appeal tribunal cannot entertain appeals against them. These considerations are commonly not appreciated by litigants who, like Mrs Clarke, are acting in person; and their notices of appeal to the appeal tribunal often amount to nothing more than a bid to re-argue the facts. That is to ask the appeal tribunal to perform an exercise that it has no jurisdiction to perform.
4. The appeal tribunal has a procedure whereby each proposed appeal comes before one of its judges on the so-called sift, when the judge will consider on the papers whether the notice of appeal raises a properly arguable case that the tribunal erred in law. He will then give directions in relation to the appeal. If it appears to raise no arguable error of law by the tribunal, or otherwise to disclose no reasonable ground for an appeal, the judge will direct that a notice to that effect is given to the appellant under rule 3(7) of the Employment Appeal Tribunal Rules 1993, as amended, following which no further step in relation to the appeal will be taken.
5. That is not the end of the road for the appellant, who has the opportunity under rule 3(8) to submit revised grounds of appeal, which will similarly be subject to the paper sift. Often the revised version will be no better, since without straw there can be no bricks, and in such cases it will receive the same treatment as the original. But the appellant is not obliged to accept the judge's decision on the papers as incapable of challenge; and rule 3(10) entitles him to an oral hearing before a judge at which he has the opportunity of persuading the judge that there are one or more grounds of appeal that deserve a full hearing before the appeal tribunal.
6. In Mrs Clarke's case, she suffered some four orders under rule 3(7) in her attempt to convince the appeal tribunal that she had arguable grounds of appeal against the tribunal's orders on the substance of her claims and on costs. The orders were made by His Honour Judge Peter Clark and His Honour Judge McMullen QC. Unwilling to take 'no' for an answer, she exercised her right to an oral hearing under rule 3(10) and it came before Judge Serota on 3 February 2010. He reserved his judgment and delivered it on 23 March 2010. By his order, he dismissed all grounds of appeal save one relating to the tribunal's costs order, which he permitted to proceed to a full hearing (the appeal on that single ground was later heard and dismissed by the appeal tribunal on 10 August 2010).
7. By an appellant's notice filed in this court on 20 April 2010 (which was in time, namely within 21 days of the sealing of the order of 23 March 2010) Mrs Clarke sought, as appears from its page 2, to challenge both the orders of the employment tribunal and the order of the appeal tribunal. Her notice includes a page listing 39 documents constituting what she calls 'the evidence' upon which she wishes to rely, her list including some documents which can fairly be called 'evidence' as well as some which cannot. The grounds of appeal open with what is apparently a summary of the heads under which her challenge is sought to be based, as follows:

'Practice and Procedure: Actual Bias, perverse, Misconduct and procedural irregularity, regarding Unfair Dismissal, Race Discrimination, Disability Related Discrimination, Victimisation Discrimination and Breach of contract, Disability Discrimination, Human Rights Act.'

The grounds that follow allege shortcomings under three paragraphs, each with sub-paragraphs, apparently directed against Employment Judge Gaskell. The complaints are that she misdirected herself in various respects; failed to consider matters she should have considered; took into account matters that she should not have considered; misdirected herself in relation to the costs application; displayed actual bias; and arrived at a perverse decision.

8. The grounds of appeal do not, on their face, make good any arguable basis for a conclusion that Judge Serota was wrong to dispose of the oral hearing before him in the way he did; and, formally speaking, the only appeal open to Mrs Clarke is against his order since there is no appeal to this court against a decision of an employment tribunal. It is, however, of course the case that when this court considers appeals from the appeal tribunal, it will usually focus on whether there was any error of law by the employment tribunal, which will require a scrutiny of that tribunal's reasons. No doubt the intended thrust of Mrs Clarke's grounds of appeal is that the employment tribunal went wrong and Judge Serota was in error in failing to recognise it.
9. On 9 June 2010 Mummery LJ, a former President of the appeal tribunal with great experience in employment law, considered Mrs Clarke's permission application on the papers. He refused permission for these reasons:

'The proposed appeals against the orders made by HHJ Serota in the EAT on 23 March 2010 (1) dismissing an appeal against the judgment of the ET sent to the parties on 9 February 2009 in an unfair dismissal/ race discrimination/ disability discrimination/ breach of contract case; and (2) limiting the grounds on which the ET's order for costs sent to the parties on 30 July 2009 can be appealed to the EAT, has no real prospect of success. An appeal from the EAT is confined to questions of law and no reasonably arguable point of law is identified in the grounds of appeal or in the skeleton argument. The multiple grounds are directed to achieving on appeal different findings of fact on the evidence that was before the ET.'

10. Following that reversal, Mrs Clarke renewed her application at an oral hearing, and it came before me on 8 September 2010. In preparation, I read the judgments of the two tribunals below. The employment tribunal's two sets of reasons occupy over 50 single spaced pages and the appeal tribunal's judgment occupies some 25 double spaced pages. I also read Mrs Clarke's skeleton argument which, for a litigant acting in person, was unusually short, occupying fewer than three single spaced pages. Brevity in a skeleton argument is not a fault. I regard it as a virtue. In this case, however, the skeleton argument was in substance no more than a repetition of the grounds of appeal. It made no attempt to explain or develop them, or to show how they were said to undermine the employment tribunal's decision. Of course, it was uncompromisingly critical of the tribunal. But the levelling of undeveloped criticism of a decision is not enough to justify the giving of permission to appeal. This court will only give permission to appeal on specific grounds that it is satisfied raise a properly arguable point with a real prospect of success. It is no good, for example, simply asserting that the employment judge was biased. If that sort of allegation is to get anywhere, it is necessary to identify the facts that are said to underlie it. Nor, for another example, is it sufficient to assert that the employment judge wrongly admitted evidence about a particular matter (in this case, that includes evidence relating to events concerning a private investigator), without making an arguable case as to why such evidence was wrongly admitted and what, if any, effect it had on the overall decision.
11. Oral hearings such as that before me on 8 September 2010 are ordinarily listed for no more than 30 minutes - whether the applicant is in person or represented by lawyers. Such timing works on the basis that the judge will have pre-read the papers sufficiently to understand the grounds of appeal for which the applicant seeks permission to appeal. The 30 minutes is split between (i) the allocation of time to the applicant to develop orally his argument on the grounds he wishes to pursue; and (ii) the giving by the judge of his ruling on whether to give permission on any ground and, if so, which. The hearings commonly overrun because, if permission is to be refused, the judge will want to give a full explanation as to why, which will often take more time than the listing allows.
12. The present application was, I found, an unusually difficult one since, for reasons explained, at the opening of the application I had no proper idea of what points Mrs Clarke wanted to argue or to what, if anything, they might amount. As it happens, I had more time available on the morning of Mrs Clarke's application than the allotted 30 minutes, and so I was able to allow her approximately 80 minutes to address me on her grounds of appeal and to explain their nature, having first informed her that I would not give my ruling that morning but would give it in writing later. She was, therefore, given a generous opportunity to explain her case, one not given to most applicants.
13. I have to say, however, and do so with every respect to Mrs Clarke who is not a lawyer, that it was not a productive exercise. She was clearly not in a position to present any sort of structured presentation to the court and the exercise turned out to be an apparently somewhat random one. I considered that the best way forward was to ask her to focus on the main heads of complaint in her skeleton argument upon which she wished to focus, with a view to showing the nature of her case under those heads. I have no doubt that she did her best to help my understanding of her case under various heads. I propose, therefore, in dealing with her application, to focus on them.

The facts

14. I have concluded that long introduction without, so far, any explanation of the issues before the employment tribunal or the appeal tribunal. If this were a judgment on a substantive appeal rather than a permission application, I would probably introduce the arguments with an account of the facts and of the issues decided below in detail sufficient to enable a reader otherwise unfamiliar with the case properly to understand the background. To perform the like exercise in this judgment on this permission application would, I consider, require the occupation of a disproportionate amount of judicial time. Judgments on such applications ordinarily have no authoritative force as regards the establishment of precedent, as this one will not. Their only purpose is to explain to the applicant why he or she is or is not being given permission on one or more of his grounds of appeal. The employment tribunal, in two sets of reasons, prepared with what, on their face, appears to have been conspicuous care and thoroughness, explained the story, the issues and its decision comprehensively; and Judge Serota also set out a summary of the factual background to the case sufficient to explain his judgment. Although I am not sure that any of the judgments below is accessible on any website, they are, I believe, publicly obtainable by anyone who wishes to read them. I do not therefore propose to rehearse the story in close detail, but will at least summarise its bare bones so as to set this judgment at least in some sort of context. For that purpose, I will draw on, but reduce, Judge Serota's summary, itself drawn from the tribunal's findings. Mrs Clarke will no doubt disagree with some of what follows because she disagrees with the tribunal's findings of fact. But they must represent the starting point for any higher court concerned with the question of whether the employment tribunal committed any error of law in coming to its conclusions.
15. Mrs Clarke was employed from 1979 as a typist by Eagle Star. In 1992 she was off sick with wrist pains, was admitted to the Eagle Star Health Insurance Scheme and started receiving permanent health insurance benefit. She was entitled to receive it so long as she remained a member of Eagle Star's permanent staff and was totally disabled as defined in the scheme rules. In 1998 Eagle Star merged with Zurich, the respondent, which became her employer under a TUPE transfer. After 1992 she remained an Eagle Star, and then a Zurich, employee, but did no work for either.
16. In January 2002 Mrs Clarke was asked by Zurich to agree to a medical examination. Following some further seven letters, in May 2003 she agreed. In July 2003 Dr Baron prepared a report based on the documents only and with no medical examination, which Zurich regarded as essentially based on Mrs Clarke's own opinion of her ability to work. Zurich asked her to submit to a medical examination, to which there was no initial response but Dr Baron was eventually able to visit her in January 2004, following which he reported on 29 January 2004 that although she claimed to be unable to work, he had been unable to verify this objectively.
17. Zurich therefore arranged for a functional capacity test for 1 April 2004, which was aborted upon Mrs Clarke complaining of excessive pain although Dr Puckey, who conducted it, considered her complaints to be inconsistent with what she had witnessed. Mrs Clarke was reluctant to agree to the report of that test being provided to Dr Baron and only so agreed in August 2004.
18. In January 2005 Zurich's PHI Management Group considered and was concerned about the case because the medical evidence before it conflicted. After consulting with the HR department, it decided to place Mrs Clarke under surveillance. The employment tribunal found that Mr Steer, who referred the matter to HR, did not know that Mrs Clarke was black. On 3 March 2005 Mr Grove, an inquiry agent, was instructed to carry out the surveillance. His instructions described Mrs Clarke as black, which the tribunal found was simply a description to enable him to identify her.
19. On 10 March 2005 Mr Grove was grabbed by three men outside Mrs Clarke's house, held there for some hours and threatened with machetes. Members of her family were arrested. Her husband was subsequently convicted of an offence and sentenced to five months' imprisonment. Her daughter was acquitted of any offence. Zurich disclosed that it had placed Mrs Clarke under surveillance, which led to her grievance that the surveillance or the decision to institute it was racially motivated. Whilst she denied participating in the events affecting Mr Grove, there was some inconsistency in her accounts as to where she was at the material time. The tribunal found, in its costs judgment, that she had participated in the unlawful detention of Mr Grove and that this amounted to gross misconduct. She was advised to place her concerns about the surveillance in writing but did not do so until November 2005. She said she wanted compensation and threatened to go to the newspapers. Zurich concluded that the evidence relating to the surveillance incident showed her to be not as incapacitated as she had maintained: she was neither bedridden nor unable to leave her house. Zurich decided, however, not to withdraw her PHI and it so informed her.
20. On 21 March 2005 Zurich telephoned Mrs Clarke to tell her that the payments would not be stopped. The phone was answered by her son who told Ms Yates of Zurich, the assistant to the director of HR, that Mrs Clarke was out driving her car. Mrs Clarke complained of being harassed and refused to agree to a further medical examination.
21. On 18 April 2005 Zurich wrote to her requiring her to attend a functional capacity assessment ('FCA') by an independent company in Bristol. Supported by her medical advisers, she said she was unable to go to Bristol for this. It was therefore arranged for the FCA to take place in Birmingham. It was to be carried on 23 May 2005 by a company called Hanoun. Mrs Clarke was unhappy that, in accordance with Hanoun's standard practice, it was to be videoed and so it was aborted. Hanoun complained that she and her husband had acted aggressively and had abused the operative, Mrs Barlow. Hanoun was only willing to undertake a FCA if it was videoed, there was no inappropriate behaviour and the husband was absent. The tribunal described Mrs Clarke as being very obstructive in re-arranging this assessment.
22. On 8 July 2005 the PHI Management Group decided to suspend payments because of Mrs Clarke's lack of co-operation in assisting with the provision of medical information and her failure to undertake the FCA. Ms Yates informed her of this decision on 13 July 2005 and offered various options, including a further FCA. On 21 July 2005 Zurich wrote to her asking for information about the Grove incident of 10 March 2005 and asking her to attend a formal investigatory meeting. Solicitors for her husband and daughters wrote saying they had advised her not to attend. In a later conversation, Mr Kieran of those solicitors informed Mr McMullen, Zurich's head of operations and systems, that Mrs Clarke was present from time to time during the Grove incident, being information differing from her earlier accounts. Whilst Mr Kieran denied to the employment tribunal that he had given this information, the tribunal did not accept his denial.
23. On 25 July 2005 Mrs Clarke's solicitors wrote to Zurich to the effect that she was willing to attend a further FCA but on the basis that it would not be videoed; and she disputed Zurich's right to suspend the payments. Hanoun refused to carry out a further FCA if it was not videoed. On 29 July 2005 Mr McMullen wrote offering Mrs Clarke a further investigatory meeting but her solicitors replied that she was a witness in criminal proceedings and had been advised not to attend.
24. On 26 August 2005 Zurich invited Mrs Clarke to a two-part meeting on 16 September 2005. The first part was to be a disciplinary meeting in relation to her failure to attend the prior investigatory meetings; the second was to be an informal investigatory meeting. Her solicitors sent a letter from her psychiatrist, Dr Villa, saying she was unable to attend the four-hour meeting (no meeting of such length having been suggested). He made a counter-proposal as to the holding of the second of the two meetings after a break, to which Zurich agreed.
25. On 29 August 2005 Zurich placed Mrs Clarke under further surveillance, following which Mr McMullen invited her to a meeting on 26 October 2005 to establish the facts in relation to the events of 10 March 2005 and to investigate the PHI Management Group's concerns as to her eligibility to continue to receive payments. In the meantime, there was further surveillance of her on 6 September 2005, the tapes of which showed her driving a car, parking in a disabled bay, walking with a stick and ascending stairs.
26. On 9 September 2005 Mrs Clarke's husband telephoned Zurich to inform it that she would not attend the 16 September 2005 meeting or any meeting. That was followed by a final written warning from Zurich as a result of her failure to co-operate with Zurich by attending the meeting originally fixed for 29 July 2005 and then re-scheduled for 29 July and 16 September 2005.
27. There was further correspondence in which Mrs Clarke objected to Mrs Barlow carrying out the FCA and on 26 September 2005 it was arranged for it to be carried out by Dr Stoot, as it was on 28 September. Mrs Clarke's pain level led to the termination of the assessment before there could be a full clinical examination. Dr Stoot's opinion was that although she had a low grade spinal problem, she reported her impairment function and disability highly inaccurately. His opinion was that she was behaving in a disproportionate fashion and failed to co-operate reliably, fully or accurately and that there were clinical discrepancies between her complaints and his examination. On 5 October 2005, following his consideration of recordings made on the surveillance of Mrs Clarke, Dr Stoot reported that they showed her as having significantly better movement, quality and functional ability than had been demonstrated during his assessment.
28. On 19 October 2005, having reviewed the evidence, the PHI Management Group determined that the applicant was no longer eligible to receive the PHI benefit and the payments to her were stopped as from 20 October 2005. She was informed of the decision and that consideration was being given as to whether she had been mis-claiming. She was told of her right of appeal, which she exercised.
29. Mrs Clarke failed to attend an investigatory meeting on 26 October 2005, at which it was concluded that she had had more involvement in the incident of 10 March 2005 than she had claimed and had failed to co-operate in relation to the FCA. A recommendation was made that there should be a formal disciplinary meeting. On 2 November 2005 she was invited to such a meeting, to be held on 15 November 2005. On 14 November 2005 Zurich advised her that she could provide additional medical information within two months. In a telephone call between her representative, Mr Harris, and Zurich, Mr Harris informed Zurich that she would not attend the meeting on 15 November 2005. No reason was ever given for her non-attendance.
30. The meeting took place on 15 November 2005 in Mrs Clarke's absence. It was conducted by Simon Hancock, Zurich's head of finance. Mrs Clarke was required to answer charges in relation to her conduct on 10 March 2005 and the PHI Management Group's concerns in relation to her recent claims under the PHI scheme. She had been told that if she did not attend without proper reason, the meeting would proceed in her absence. Mr Hancock concluded that he could make no final decision as to her involvement in the Grove events of 10 March 2005, and the criminal trial resulting from them was also only seven days away. Having, however, reviewed the evidence (including medical evidence) he concluded, as the employment tribunal found, that from 10 March 2005 Mrs Clarke had exaggerated her symptoms deliberately to gain a personal benefit from the PHI scheme, had deliberately misled Zurich and been repeatedly obstructive in medical reviews. He further found that her continued non-attendance at meetings without valid reasons was a deliberate attempt to avoid these important matters. Zurich therefore dismissed Mrs Clarke for gross misconduct, its grounds for doing so not including anything in relation to the Grove incidents of 10 March 2005. She was informed of this on 18 November 2005.
31. When Mr Hancock later considered her participation in those events after the criminal trial, he concluded that she had not been honest about it and his conclusion, on the balance of probabilities, was that she had been sufficiently involved in it that a charge of bringing Zurich into disrepute was also proved. On 28 November 2005 Mrs Clarke sent a letter said to amount to a written grievance in relation to the surveillance incident.
32. An appeal was fixed for 11 January 2006 but was re-fixed for 14 February 2006. Mrs Clarke's conduct of the appeal was the subject of a critical finding by the tribunal. The appeal was unsuccessful. Mrs Clarke's ET1 followed on 10 May 2006. The hearing eventually took place in June and November 2008, with the costs hearing being in June 2009. The outcome of the liability hearing was that all Mrs Clarke's claims for race and disability discrimination were dismissed, as were her claims for unfair dismissal and breach of contract.

Mrs Clarke's grounds of appeal

33. I do not propose to explain the tribunal's conclusions on the various issues. I propose simply to take each ground that Mrs Clarke raised at the oral permission hearing and express my views on whether it raises an arguable ground of appeal.

Mrs Clarke's disability

34. Mrs Clarke's claims in relation to her disability included claims for direct discrimination, disability-related discrimination and victimisation, including that her dismissal was an act of disability discrimination. She pleaded no case of a failure to make reasonable adjustments although she suggested complaints of this nature in her evidence. Her point in relation to her disability appears to have been essentially the same as that which she advanced unsuccessfully to Judge Serota. He found it an 'extremely difficult submission to understand' as, with respect, do I.
35. Its essence seems to be that the employment tribunal did not have a sufficient understanding of the nature of her disability and ignored the expert evidence relating to it. That evidence consisted of a report by Dr Struthers, a single joint expert appointed to examine, conduct a review of and produce a medico-legal report on Mrs Clarke. He did so and opined that she was disabled within the meaning of the 1995 Act between January 2004 and February 2006. His report related to the tenosynovitis of the left wrist that she suffered in 1992/93, her subsequent chronic wrist pain and the diagnosis of osteoarthritis in the wrist. Also in evidence was a psychiatric report prepared by Dr Pradhan, another single joint expert. Mrs Clarke complains that these reports were not taken into account by the tribunal, which made no reference to them. Instead, the tribunal focused rather on reports dealing with whether she was exaggerating her disability.
36. There was, however, no issue as to Mrs Clarke's disability at the employment tribunal hearing, as the tribunal understood: see paragraph 24 of its reasons. The opinions expressed by Drs Struthers and Pradhan were not in dispute. The point central to what was in dispute was that under the rules of the PHI scheme, whilst a disabled member was entitled to receive benefit so long as she remained totally disabled as defined in the Scheme's rules, the member was also obliged to submit to periodic reviews so that Zurich could be satisfied of continued disablement. Mrs Clarke was not, at the material time, doing any work for Zurich and had not worked since 1992. The issues leading her to eventual dismissal were in respect of Zurich's lawful attempts to carry out such reviews; and as to whether she was co-operating in them and/or was exaggerating her disability and whether, perhaps with reasonable adjustments, she might be able to return to work. It was not the function of Drs Struthers and Pradhan to report on this; and the tribunal's findings in paragraph 36 that Mrs Clarke was not as disabled as she had claimed and that she failed properly to co-operate with Zurich in its attempts to assess the position were justified by the evidence to which it referred, although I recognise that she disagrees with such findings. Similarly, its conclusions in paragraph 24 to 28 that Mrs Clarke was not the victim of any sort of discrimination by Zurich were conclusions that it was entitled to reach on the evidence.
37. Mrs Clarke also sought to make a point in relation to an assertion in a letter of 13 September 2005 that she was 'driven away' in a car. After some apparent difficulty in explaining the point, Mrs Clarke referred to paragraph 61 of Judge Serota's judgment, which reads as follows:

'[Mrs Clarke] also relied upon a letter from Dr Struthers dated 7 January 2008 relating to video surveillance. These did not cause Dr Struthers to alter his views in his initial report; those views, however, were to the effect that she was disabled but did not deal with the extent of her disability or whether she was exaggerating her symptoms.'

How those observations were said to be relevant to the remark in the letter of 13 September 2005 was obscure. I am not persuaded that that remark provides the basis for any arguable ground of appeal against the tribunal's conclusions. Mrs Clarke did not explain how it did or might.

38. Mrs Clarke's bid by way of an appeal to this court to challenge the tribunal's conclusions in relation to disability discrimination is no more than an endeavour to re-argue the facts and press for different findings. The facts have, however, been found; they were supported by evidence; and neither the appeal tribunal nor this court had or has any jurisdiction to re-try them. So far as this ground of appeal is concerned, Judge Serota dealt with it comprehensively in paragraphs 60 to 62 of his judgment, with which I respectfully agree.

No reasonable adjustments made by Zurich

39. In this connection Mrs Clarke referred me to paragraph 36 of the tribunal's reasons, being its conclusion for the rejection of her breach of contract claim (one asserting that Zurich had breached its alleged obligation to continue paying her the disability benefit). Paragraph 36 reads:

'In any event the medical evidence is clear; [Mrs Clarke] is not as disabled as she claims and appears not to be unable to undertake her normal occupation (possibly with some adjustments in place). [Mrs Clarke] has demonstrated a clear unwillingness to co-operate in any way in getting back to work with appropriate adjustments or even to be properly assessed. Accordingly the decision to withdraw benefit was entirely in accordance with the scheme rules and could not on any basis amount to a breach of contract.'

40. Mrs Clarke said that that was a finding that the tribunal was not entitled to make, although she made no attempt before me to show how it was arguable that there was no evidence justifying it. Judge Serota, in paragraph 62 of his judgment, held that the tribunal's conclusion in paragraph 36 was justified by the evidence and Mrs Clarke said nothing to cause me to disagree with him.
41. Mrs Clarke sought to develop her argument under this head by what appeared to be a random reference to a single line on page 2 of the note of an internal Zurich meeting held on 19 October 2005. The line read that 'Andrew Pearce and/or Dr C Stoot are not qualified. (Hanoun will provide us with their qualifications if needed)'. Perhaps a little remarkably, Mrs Clarke put the first sentence of that before me as supposedly relevant fact. A reading of the document as a whole, however, shows that it was nothing of the sort: it did no more than reflect Zurich's assessment of one of Mrs Clarke's likely reasons for not attending an appointment. Mrs Clarke's misuse of this document – somehow said to be relevant to the 'no reasonable adjustments' point -- illustrated her lack of any real grip of the issues. There is no substance in this ground of challenge to the tribunal's decision.

Conduct

42. Mrs Clarke next sought to challenge the tribunal's finding that she had not co-operated with Zurich in relation its investigation. She said that she co-operated all the time save to the extent that she legitimately objected to the particular manner in which Zurich wanted to carry out part of its inquiry. She asserted that there was no evidence of any lack of co-operation on her part. In support of that assertion, she put before me a letter dated 5 December 2003 from Helen McLean (Group PHI Manager of Zurich) to her, which she said she had produced neither to the employment tribunal nor to Judge Serota, saying that she had only just discovered it in her house. She said she could not have found it earlier because her house had been in a state of chaos as a result of construction work being carried out. The letter, headed 'Permanent Health Insurance (PHI) Review, reads as follows:

'Further to my letter dated 14 October 2003, I write to provide you with a PHI review update and also to seek your assistance with the next stage of this process.

Under the PHI scheme terms, continuation of benefits is subject to "periodic reviews by the Company of proof of continued disablement. The member may be required to be examined by an independent doctor/consultant appointed by the company".

I can confirm that on receipt of your completed medical consent form earlier this year, our Occupation Health Specialist (Dr Charles Baron) has obtained medical reports from your GP but regrettably his findings are inconclusive. Therefore, to gain a more definitive view, we wish Dr Baron to conduct a home consultation. I would therefore be grateful if you could contact me within 21 days of receipt of this letter to arrange a mutually convenient appointment. If we do not receive a positive response within this timescale, the company will base a decision on current information which could result in your benefit being stopped.

Many thanks for your co-operation and I look forward to hearing from you."

Mrs Clarke said that she duly co-operated with Zurich as requested in that letter, and a home visit by Dr Baron was arranged.

43. Mrs Clarke's reliance on that letter was a striking illustration of just how ill-prepared she was at the oral hearing, as became even more apparent to me when I afterwards re-read the tribunal's extensive reasons. In paragraph 16.6 and following the tribunal set out the facts it found relating to Mrs Clarke's co-operation or lack of it. The tribunal related her failure to reply to any of five letters written to her in May 2001, July 2001, September 2001, June 2002 and November 2002 or to any of seven further letters written between December 2002 and May 2003. Eventually, however, she signed a consent form agreeing to the obtaining of a current medical report, which led to Dr Baron's report, which Zurich received on 28 July 2003. For reasons I have summarised, Zurich then wanted Dr Baron to examine Mrs Clarke, which he had not yet done. To that end, Ms McLean wrote to Mrs Clarke on 14 October 2003 asking her to make contact to arrange a home consultation. Mrs Clarke did not respond to that letter. The tribunal then, in paragraph 16.16, explained that Ms McLean wrote the further letter of 5 December 2003 that I have quoted, and that she did then respond to it. One inference is that the only reason why that letter provoked her to respond was because of its warning that, unless she did so, her benefits might be stopped. Dr Baron then visited Mrs Clarke at her home on 28 January 2004 and reported the following day.
44. Those paragraphs in the tribunal's judgment reflect a total lack of co-operation on Mrs Clarke's part until she was faced with the threat of losing her benefit. If she had taken the trouble to remind herself of the tribunal's reasons before embarking on the oral hearing before me, she would have seen that, contrary to her assertion to me, the letter of 5 December 2003 was before the tribunal. She might perhaps also have appreciated that to refer me to that single letter -- one to which she responded -- as proving co-operation on her part was to provide a materially incomplete and misleading picture. A consideration of the whole picture showed just how unwilling to co-operate she in fact was.
45. Mrs Clarke referred me next to a document apparently dated 4 April 2010 and being a 'to whom it may concern' statement by Judith Joseph in relation to the assessment of Mrs Clarke that took place on 28 September 2005 at Nuffield Hospital, Birmingham, in the presence of Andrew Pearce and Dr Stoot. The tribunal dealt with this assessment in paragraph 16.54 of its reasons, where it explained that the assessment was terminated before a full clinical examination could be conducted because of Mrs Clarke's reported levels of pain exceeding acceptable limits. The tribunal continued:

'16.55 In summary, Mr Pearce concluded that his overall impression of [Mrs Clarke] was that she did in all likelihood have a low grade spinal problem but that she reported her impairment, function and disability highly inaccurately. He summarised that [Mrs Clarke] was behaving in a disproportionate fashion did not appear to be able to co-operate reliably, fully or accurately in order to establish her actual abilities or impairment.

16.56 Dr Stoot confirmed that he agreed with the findings of Mr Pearce's report and specifically pointed out that clinically significant discrepancies had been identified which led to concerns about the validity of [Mrs Clarke's] clam to disability.'

46. Mrs Clarke was unable to explain to me in a way that I could understand the nature of the document of 4 April 2010. She accepted that it was only produced then and, therefore, that it could not have been, and was not, before the employment tribunal. She appeared to claim that it was a re-creation of some document that was before the tribunal although, if so, she did not show me that document. As it appears to me, the April 2010 document is worthless. If Ms Joseph had any relevant evidence to give, she could have been called as a witness but was not. If, as may be the case, any written statement from her was put before the tribunal in relation to the assessment of 28 September 2005, then the tribunal had that evidence as well as the evidence of Mr Pearce and Dr Stoot. The tribunal made its findings about that assessment that I have summarised. There is no basis for any challenge to those findings, which the tribunal was entitled to make on the evidence before them.
47. Mrs Clarke referred me next to a three-page document dated 22 October 2005, whose nature is also obscure. She asserts that it was before the tribunal, although I have not identified anything in the tribunal's reasons that might be said to refer to it. That, of course, is the sort of observation upon which Mrs Clarke would latch with enthusiasm, using it to point out that the tribunal had ignored something material. The document appears to be in the nature of a proof of a witness who was present at the 28 September 2005 assessment. It is unclear who it is – it may be Ms Joseph (the statement, incidentally, records that Mrs Clarke had driven a car about a month before the assessment). I derive no assistance from this document. If it was before the tribunal, they will have attached such weight to it as they considered it deserved. If it was not, it is irrelevant.
48. Mrs Clarke's overall submission on the tribunal's finding that she was fairly dismissed on conduct grounds was one that it was one that it was not entitled to make since she had made no fraudulent claims for the payment of benefit. The tribunal, however, explained the basis of its misconduct finding as follows:

'30. The misconduct in question was firstly a wholesale failure on the part of [Mrs Clarke] to co-operate with [Zurich] in proper investigations which they were entitled to make as to her medical condition she having been absent from work due to ill-health for more than 10 years coupled with a conclusion which was clearly available to Mr Hancock on the evidence before him that [she] had been exaggerating the extent of her disability since at least March 2005 and had therefore been fraudulently claiming PII benefits from [Zurich].

31. In our view there can be no doubt that such conduct is properly categorised as gross misconduct and the decision to summarily dismiss [Mrs Clarke] was well within the range of reasonable responses available to Mr Hancock. The investigations that had been undertaken prior to this decision were exhaustive possibly going further than was required particularly the decision to carry out a second functional assessment test when the first had been aborted due to [Mrs Clarke's] conduct.'

49. Mrs Clarke has failed to advance any arguments to me that satisfy me that it is fairly arguable that, in arriving at its decision that Zurich's dismissal of her was fair, the tribunal perpetrated any error of law.

Breach of contract

50. Mrs Clarke's case here is that the tribunal was wrong to find that there was no breach of contract by Zurich. Her difficulty here is that the tribunal made clear findings of fact in paragraphs 35 and 36 to the effect that Zurich had been entitled to withdraw her benefits. She had forfeited her rights to continued payment because, the tribunal found, she had failed to comply with the scheme rules that required her to co-operate with the carrying out of medical reviews. Mrs Clarke asserts that, contrary to this finding, she did co-operate; and that she is entitled to continued payment of her benefit to the age of 60. I can see no basis on which the tribunal's finding to the contrary can be the subject of challenge in this court.

Destruction of evidence

51. Mrs Clarke's next assertion was to the effect that the employment tribunal had destroyed evidence. This was a confused and imprecise submission. She claimed that it was supported by a witness statement made on 31 August 2010 by Susheel Gill, a solicitor with Heer Hanak, her former solicitors, which I do not read as in fact suggesting that the tribunal had destroyed any relevant material. It related to an earlier appeal that had come before the appeal tribunal (by coincidence, also Judge Serota) against a decision made on a case management discussion in the tribunal proceedings on 10 December 2007. It related to tapes said to have been in Zurich's possession. Mr Gill's account in the witness statement is, however, not easy to follow. He did not, for example, explain what the tapes were about, but his final assertion was that at the beginning of the trial it appeared that the only copy of the tape had been destroyed.
52. Judge Serota dealt with the tape matter in his judgment leading to the order currently the subject of challenge. In paragraph 72, he recorded that Mrs Clarke's case at the tribunal had been that she could not have a fair hearing without the original tapes from which transcripts had been made. He referred to the case management order of Employment Judge Hughes by which, for reasons given, the judge had declined, on proportionality grounds, to order the production of copies of the original recordings. He continued:

'73. I have seen nothing that suggests that there was any bias or procedure or impropriety [sic: should probably be "any bias or procedural impropriety"] and there is nothing to suggest that the tapes would have assisted [Mrs Clarke's] case. I am unable to understand how it can be argued that even assuming the tapes were relevant, the Employment Tribunal could be biased for having disposed of the case in the absence of the tapes. The decision of Employment Judge Hughes was eminently reasonable.'

53. The point about the tapes appears, therefore, in fact to have been a point about bias, although that is not how it was explained to me. I am not persuaded that there is any arguable point that the absence of the tapes prevented the fair trial of Mrs Clarke's case.
54. Mrs Clarke also made an imprecise point about certain further particulars of her case not being before the tribunal. She had raised some point about this in a letter of 8 September 2009, which the Tribunals Service answered on 14 September 2009. That letter, from Douglas Crump, explained that Judge Gaskell had at no time destroyed any of the documents adduced in evidence before her. The letter continued:

'The position, as I understand it, is that the trial of your claims took place over two periods: the first on 30 May to 13 June 2008, and the second from 12 November to 14 November 2008. You were represented by Miss Andrea Chute, of counsel, during the hearing in May and June, and you represented yourself in November.

I am told that there were two versions of details of further particulars relating to your claim provided by your representatives, and that there was some confusion over the version of the further particulars which was to be included in the bundle. The error, if there was an error, was rectified and the version of the document which your representatives wished to be included in the bundle was incorporated in the bundle for the hearing. I understand that in the event, the document was not referred to during the trial.

By way of a letter of 13 November 2008, the employment tribunal was informed by Messrs Heer Manak solicitors that Mrs Nagi, who I understand was the individual dealing with your claim, had indicated that a copy of the original bundle prepared by the respondents solicitors was given to you in May 2008.'

55. Mrs Clarke did not, in her submissions to me, begin to show that the problem about the particulars – whatever it was – resulted in any undermining of the procedural fairness of the proceedings before the employment tribunal.
56. What does appear to have happened, however, is that Employment Judge Gaskell's notes of the of oral evidence given by Mrs Clarke in relation to the incident of 10 March 2005 have been lost, as Judge Gaskell explained in her letter of 21 July 2010 to the Registrar of the appeal tribunal. It is unclear to me from that letter whether Judge Gaskell's notes of all the oral evidence she heard in the tribunal proceedings have been lost. Whatever the position, any such loss is unusual and unfortunate. But, again, Mrs Clarke made no submissions to me that satisfied me that any such loss gives her some arguable ground of appeal against the tribunal's decision.

Race discrimination; victimisation

57. Mrs Clarke asserted that her victimisation claim was not heard and that the tribunal's dismissal of her race discrimination claim was irrational. Those claims were, however, expressly considered and, for reasons that the tribunal clearly expressed, rejected in paragraphs 24 to 28 of the tribunal's reasons. There is no arguable basis for the assertion that they were irrational. As Judge Serota said, there is no basis for going behind those findings.

Costs

58. Judge Serota permitted Mrs Clarke to appeal in respect of the primary basis of the tribunal's costs decision, permitting her to argue that the employment tribunal had misunderstood the evidence relating to Mrs Clarke's participation in Mr Grove's kidnapping or, alternatively, failed to give an adequate explanation as to why it rejected Mr Grove's evidence. That appeal was heard and dismissed on 10 August 2010. The failure of that challenge meant that the primary basis of the tribunal's costs decision remained unscathed.
59. The tribunal also gave further reasons for its costs decision but Judge Serota refused to permit Mrs Clarke to pursue any further criticisms of that decision to a full appeal. She has, however, asked this court to permit her to pursue them.
60. Precisely what those points are is obscure to me. Judge Serota did not explain them in his judgment (beyond referring to what he called a 'clearly misconceived' submission in paragraph 66 of his judgment) and Mrs Clarke produced nothing to me in writing that has explained them. Nor did she explain them orally. The one point she did advance at the oral hearing was that she said that the employment tribunal heard no argument on Zurich's costs application, a point she also made in a written chronology that she had prepared. I do not understand the submission. The tribunal's costs judgment, together with the reasons for it, was signed by Employment Judge Gaskell on 23 July 2009 and sent to the parties on 30 July 2009. That document records that the hearing of the costs application took place on 9 June 2009. Paragraph 1 of the reasons records that the argument on the application took place on that day. Paragraph 3 refers to an admission that Mrs Clarke made to the tribunal in the course of the argument. Paragraph 8 records that, during the hearing, Mrs Clarke indicated that she was not asking for the tribunal to consider her means to be considered (in connection with her ability to pay any costs that might be ordered) and that she disputed the tribunal's jurisdiction to make such an inquiry. Mrs Clarke's assertion to me that there was no argument on the question of costs is impossible to reconcile with the tribunal's reasoned decision on costs. I am not persuaded that there is any ground under this head that merits the giving of permission to appeal. Since the oral hearing, I have now seen the appeal tribunal's judgment following its hearing of the costs appeal on 10 August 2010 (before Judge Serota, Mrs J.M. Matthias and Ms B. Switzer on 10 August 2010). Paragraph 3 records that Mrs Clarke made the same point about there having been no hearing on 9 June 2009 (the judgment refers to the relevant date as being 9 September 2009, which was plainly an error) and that the submission was rejected, for the reasons given.
61. When the time available at the oral hearing before me had just about run out, Mrs Clarke handed me a copy of this court's decision in Lodwick v. London Borough of Southwark, 18 March 2004. It deals with issues of bias and costs, but as it was handed to me at the tail of the costs argument, I presume it was regarded as relevant to that. But I cannot see anything in it that assists Mrs Clarke. The jurisdiction of the employment tribunal to award costs is, I consider, not in question and it appears to me that it directed itself correctly as to whether circumstances had arisen in which it might properly make the award of costs that it did. Mrs Clarke has not advanced anything to me showing that she has a real prospect of persuading the full court that the award of costs against her was made in error.

Disposition

62. I refuse to give Mrs Clarke permission to appeal on any ground.