England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL) DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(SIMLER J)

		The Royal Courts of Justice Strand, London WC2A 2LL
		14 June 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

LORD JUSTICE UNDERHILL:

1. This is an appeal against a decision of Simler J in the Employment Appeal Tribunal, taken under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended), rejecting a proposed appeal by the Appellant against a decision of the Employment Tribunal (Employment Judge Kolanko sitting with lay members), which dismissed the Appellant's claims of disability discrimination and unfair dismissal.
2. In my view, the appeal is appropriate to be dealt with by a short-form judgment - see Deutsche Trustee Co Ltd v Cheyne Capital Management (UK) Ltd [2016] EWCA Civ 743. Accordingly, I will not myself set out the facts, I will simply incorporate into this judgment Simler J's summary which can be found at paragraphs 3 to 14 of her judgment:

"3. The Tribunal made detailed findings of fact at paragraphs 9.1 9.148, and these are of necessity not repeated here. Of critical importance, however, are the following findings. The Tribunal recorded the fact that the Claimant commenced employment with the Respondent NHS Trust as a trainee medical photographer on 17 December 2007. In February 2008 concerns were noted regarding the working relationship between the Claimant and a fellow worker, Ms Marie Jones, who was then a senior medical photographer. The Tribunal described the two employees as two strong personalities. In April 2009 - so, a little over a year after concerns were first raised - the Claimant made her first self-referral to occupational health, and an occupational-health note recorded that she had complained about bullying by Ms Jones. Thereafter, efforts were made to physically separate Ms Jones and the Claimant within the department wherever practicable. Those efforts were achieved by different means at different times, but there were continuing tensions between them, albeit that for about a year there was a period where relations were relatively quiet.

4. In November 2009 the Claimant, who had by then successfully qualified as a medical practitioner, applied for and was appointed to a post as a qualified medical photographer. In May 2010 the tensions re-emerged, this time more significantly, and by July 2010 the Claimant was alleging bullying and harassment by Ms Jones and raised a grievance supported by her union. An investigation was undertaken and a report prepared in February 2011 that observed:

'Within the supporting papers and statements provided by LS [the Claimant] and MJ [Ms Jones] and those supplied by witnesses on both sides highlight a hostile and tense working environment. Numerous incidents are catalogued in great detail by both parties […]. Witnesses both refuted and supported the allegations of bullying and harassment by MJ towards LS.'

5. The report-writer concluded that there was evidence that Ms Jones had bullied and harassed the Claimant. At the beginning of March 2011 Ms Jones was relocated out of the office shared with the Claimant into Mr Bolton's office, and disciplinary proceedings were instigated against her. In May 2011 the Respondent found evidence of bullying by Ms Jones against the Claimant and gave her a final written warning. At paragraph 9.43 the Tribunal referred to that final written warning being confirmed in a letter dated 19 May 2011, which indicated that the panel felt a final written warning was appropriate but stopped short of dismissal due to the inadequate management response in dealing with the situation, and also the panel took account of the previously unblemished career and supporting character statements available in respect of Ms Jones. Ms Jones lodged an appeal in June 2011 in relation to that final written warning, and meanwhile on 4 June 2011 the Claimant was signed off work for a period of six weeks with work-related stress. Following Ms Jones' appeal hearing the chair of the appeal panel wrote to her stating that a final written warning had been too severe for someone of previously exemplary career and who had had no previous management action taken against her so that a formal warning was imposed in substitution to the final written warning previously imposed.

6. In August 2011 the Claimant returned to work, and before that occurred arrangements were made for Ms Jones to be moved out of the department. The Tribunal found that this move was not altogether successfully implemented (see, for example, paragraph 9.67, where the Tribunal refer to the fact that Ms Jones was moved to the sub-offices in the theatres wing of the hospital after the Claimant's return). On 3 August 2011 a regular medical photography team meeting took place, and this was the first occasion when the Claimant was in attendance with other staff members including Ms Jones. On 6 August 2011 the Claimant's GP wrote to the Trust's occupational health referring to ongoing problems with bullying and harassment suffered by the Claimant, who had significant levels of stress and reactive depression as a consequence. On 25 August 2011 management determined that there was a need to take further steps to bring the two staff members together, but occupational health concluded at that stage that the Claimant was not fit to take part in mediation, and so it did not take place. An email dated 8 September 2011 to the Claimant reported the outcome of Ms Jones' appeal and indicated to her that it was the view of the appeal panel that both parties should undergo formal conciliation to resolve behavioural issues once and for all failing which disciplinary action against either party might have been necessary. The Claimant responded suggesting that the threat, either express or implied, in that letter was outwith the spirit of conciliation that was being referred to, and there was then some correspondence between management and the Claimant in which management made clear the need to find a resolution that would involve medical photography staff working within a single area. A period followed in which there were discussions about a possible arbitration process, but ultimately these do not appear to have been fruitful.

7. On 25 November 2011 an incident occurred when Ms Jones entered a room in medical photography where the Claimant was present. This had a profound effect on the Claimant, who became extremely upset and distressed. That prompted a meeting between management about the incident, following which the Claimant visited occupational health, and there she was recorded as anxious, nauseated and distressed, although in discussion she denied that there had been any ongoing bullying or harassment from Ms Jones. She began a period of special leave on full pay by agreement with the Respondent from that point. She was also referred to occupational health for a full report and was seen on 16 December 2011. The Tribunal found as follows, so far as the occupational-health referral is concerned (paragraph 9.98):

'Dr Gemmell appears to have felt that his position was compromised by commenting 'I feel I am being asked to bolster each side of an argument and in short, I have no option other than to pull out of the discussion as the report which would be required to answer all these questions in full and unbiased manner for the benefit of the court would take substantially longer than the time I have available'. He suggested that this case was beyond mediation or counselling 'it has all the hallmarks of being resolved through litigation'. He indicated that medical suspension one of the questions asked by Mrs Hope was inappropriate and concluded by stating:

'I regret that other than answering the very first question, I see little value in being drawn into an intractable situation, other than to urge the Trust NOT to force [the Claimant] to work or have contact with the individual who was found to have bullied her'.'

8. Meanwhile, an external investigation had been commenced and was being conducted by Mr Major. On 6 January 2012 Mr Major's report was completed. He concluded that it was likely that there was an irreparable breakdown in the working relationship between the Claimant and Ms Jones. He noted that separating the Claimant and Ms Jones was considered unsustainable and was having a negative effect on the delivery of service in medical photography. He proposed two options...

9. The Claimant was seen on 9 January 2012 to discuss recent events. She was told by Mrs Hope that the resolution she sought - that is to say, being separated from Ms Jones - was not considered to be a reasonable adjustment and would render the department dysfunctional and unsustainable. She was provided with a copy of Mr Major's report. On 23 January 2012 there was a management meeting to discuss Mr Major's report and how to proceed. There was general agreement that the first option was wholly unworkable. The second option was discussed, and the Tribunal found at paragraph 9.109 that notwithstanding the efforts in relation to mediation that had been undertaken prior to that point management was anxious to offer the Claimant and Ms Jones a further opportunity to undertake some form of mediation process.

10. Accordingly, a mediation process was established, with both Ms Jones and the Claimant confirming their willingness to enter mediation. So far as Ms Jones is concerned, at paragraph 9.113 the Tribunal found that she said she would do whatever was necessary to rebuild the working relationship with the Claimant. The mediation started on 15 May 2012 with Professor Harris. The first day consisted of individual meetings with the parties with a proposal for the second day discussing how to take matters forward. It was accepted that in order for mediation to progress the parties would have to meet and Ms Jones expressed a willingness to do so whilst the Claimant expressed concerns about meeting Ms Jones. She left the meeting to reflect on the matter but unfortunately failed to attend the second day of mediation (see the findings at paragraph 9.124), and as a consequence the mediation failed.

11. Correspondence then ensued between the Claimant and the Respondent, and ultimately on 26 June 2012 Mrs Hope and Mr Child held a meeting with the Claimant. During that meeting three options were discussed: first, that the Claimant could return to work under the same conditions as before; secondly, consideration could be given to her redeployment; and thirdly, she could elect to resign. The Claimant rejected these options and said that she wished to return to her job as a medical photographer but without any contact with Ms Jones. She was told in that meeting that that was not an option open to her.

12. By August 2012 management had concluded that there was little option but to move towards the Claimant's dismissal given that the Claimant was unable to work alongside Ms Jones so that no viable options remained. Mrs Cripps wrote to the Claimant expressing the view that the Respondent had explored all reasonable opportunities to resolve issues, by means of an independent report, mediation through ACAS and that the Respondent was now faced with what it regarded as an irretrievable breakdown in working relationships. Following a meeting on 9 August, by a letter dated 10 August 2012, Mrs Cripps wrote to the Claimant stating that the Respondent had reluctantly decided that the only way forward in the circumstances was to dismiss her as a result of that irretrievable breakdown in working relationships. The Claimant appealed against that decision, but her appeal ultimately failed.

13. I stress that that summary of the key findings is just that. The Tribunal dealt in significant detail with the history of both the relationship between Claimant and Ms Jones and the Claimant's relationship with the Respondent and the efforts made, but I have not dealt with all of that detail here.

14. At paragraphs 16 and 17 the Tribunal set out the law relevant to the issues it had to decide. No criticism is made whatever about its self-direction in law. Then, under a heading 'Conclusions' from paragraph 80 onwards it turned to reach conclusions in relation to the agreed issues in the case. The Tribunal regarded the question whether the Claimant was disabled as a difficult one. It reached conclusions in various matters at paragraphs 19-39, ultimately accepting that the Claimant was suffering from a depression/anxiety/phobia condition that caused her to suffer a substantial adverse effect on her ability to undertake normal day-to-day activities with effect from no later than 16 December 2011 and that the Respondent had constructive knowledge of that condition by that date. It rejected earlier disability that had been asserted. The Tribunal dealt at paragraphs 40 64 with the failure to make reasonable adjustments, and although the Tribunal accepted that the requirement to work alongside Ms Jones meant that the Claimant was placed at a substantial disadvantage by reason of her disability (see paragraph 41) the Tribunal was ultimately satisfied that there was no unreasonable failure here."

3. In addition to that summary I need only add that the Appellant was dismissed in August 2012 "as a result of irretrievable breakdown in working relationships."
4. Likewise I will not attempt a detailed summary of the Appellant's claims in the proceedings, save to say that she claimed, as I have said, that her dismissal was unfair and that it also constituted a failure to comply with the duty to make reasonable adjustments within the meaning of section 20 of the Equality Act 2010, direct disability discrimination and so-called "section 15 disability discrimination". Beyond those claims there were a number of other claims about individual incidents arising during the Appellant's employment prior to the dismissal, but we are not concerned with those, the focus of the appeal being firmly on her dismissal.
5. All the Appellant's claims were dismissed by the Tribunal after a 12-day hearing in lengthy and carefully structured Reasons and, as I have said, the Employment Appeal Tribunal, first on the paper sift and subsequently at the hearing before Simler J, held that no arguable grounds of appeal had been disclosed.
6. Six grounds of appeal are pleaded on appeal to this court, but grounds 2 to 5 can be taken together because, as Mr Ian Wheaton, who has appeared for the Appellant before us although he did not appear below, acknowledged, they raise essentially the same point. I will start with that point because it is, as again he himself said, at the heart of the Appellant's case.
7. The Tribunal found, and Mr Wheaton does not dispute, that as a result of the unfortunate sequence of events summarised by Simler J in the passages which I have incorporated, the Trust found itself in a position in which the Appellant and Ms Jones could not work together, despite all reasonable efforts, including mediation, having been made to enable them to do so; in which the department could not be split, so as to prevent them having to work together; in which there were no opportunities for deployment of either of them elsewhere; and in which, therefore, the only option (recognised as a last resort) was to dismiss one or other of them. The essential question raised by these grounds is whether it was reasonable for the Trust to choose to keep Ms Jones rather than the Appellant. The Appellant says that the only reasonable choice was indeed to dismiss Ms Jones – and accordingly that it was perverse for the Tribunal to find otherwise – because the only person who had acted culpably was Ms Jones, who had been found in an internal investigation to have bullied the Appellant and to have been given a final written warning (albeit subsequently reduced to a written warning) for doing so. That was not only culpable behaviour on her part but was obviously at least a major part of the reason why the entire situation had developed. Applying that point to the specific causes of action, it followed, Mr Wheaton submits, that dismissing Ms Jones was a reasonable adjustment that the Trust had failed to make; that there was no justification within the meaning of section 15 of the Act for what the Tribunal correctly found to be a detriment falling within the terms of the section; and that the dismissal of the Appellant was unfair.
8. Mr Wheaton put that central point in the case clearly and well, and I see the force of it. I can well understand why the Appellant feels that she - an innocent party - was the one to be dismissed whereas Ms Jones, who had been found to have bullied her in the past, was not.
9. However, the situation is not as black-and-white as that. Ms Jones' behaviour was at the time of the dismissal two years or thereabouts in the past. It was not so serious as to merit dismissal, or even indeed a final written warning (I know that the Appellant believes otherwise, but that was a matter for the reasonable judgment of the employer). Ms Jones, as the Trust believed and the Tribunal found, had showed herself committed since then to making the relationship with the Appellant work. The reason why that was nevertheless not possible was because of the idiosyncratic extreme phobic reaction which the Appellant, perfectly genuinely but objectively disproportionately, had developed to having any contact with Ms Jones at all, such that she could not even continue with the mediation process. As the Appellant very fairly said at the time, that reaction was not in response to any continuing or renewed misconduct by Ms Jones, it was simply an involuntary – although, as I say, completely genuine – reaction to having any contact with her, and it reflected an underlying psychological susceptibility to stress, going back, she would say, to her original epilepsy and/or the treatment for it. When those further factors are brought into the picture the proposition that the only reasonable course was to dismiss Ms Jones rather than the Appellant is not in my view obviously correct. On the contrary, what the Trust was presented with was a difficult and sensitive situation involving an unwelcome choice between two outcomes, neither of which it might be thought would be fair to the employee concerned but a choice nevertheless that had to be made.
10. The decision whether the conduct of an employer was reasonable or justifiable in an Equality Act context or for the purposes of unfair dismissal is one which Parliament has provided is to be taken by the Employment Tribunal, an expert body, often (as here) sitting with lay members with particular expertise of workplace problems. An appeal is only available to the EAT or to this court if the Employment Tribunal can be shown to have made an error of law. Where, as here, the issue is here of reasonableness or justification (which is effectively the same thing) an Appellant can only establish such an error by showing that the decision was perverse, which it is well recognised is a high hurdle. I agree with Simler J that this is not such a case. Views may vary as to whether the better course might not have been to dismiss Ms Jones rather than the Appellant, but the question is debatable, and, that being so, the decision of the Employment Tribunal must be respected. I reach that conclusion with the more confidence because the Employment Tribunal clearly considered this case with great care and addressed the arguments head on and conscientiously.
11. Mr Wheaton attempted to get round that difficulty by contending that this was not simply a perversity case but that the Employment Tribunal had misdirected itself by approaching the matter on the basis that it was in truth impossible to dismiss Ms Jones because that would involve double jeopardy, by reason of the fact that she had already been disciplined for her earlier misconduct. He submitted that if Ms Jones had been the one who the Trust had chosen to dismiss that dismissal would, like the Appellant's, have been for "some other substantial reason" and not for misconduct, so that no question of double jeopardy arose. Mr Wheaton accepted that he could point to no passage in the Reasons in which the Tribunal explicitly took this approach, but he said that it was to be implied.
12. I should say, to start with, that this way of putting the case was not foreshadowed in the grounds or the skeleton argument. However, more substantively, I can see no sign that the Tribunal did in fact approach the issue in the way that Mr Wheaton claims. It did indeed refer to the fact that Ms Jones had been disciplined for her misconduct, but it referred equally to the other factors that I have already identified, and in particular to the fact that Ms Jones had shown herself willing and able to rebuild the relationship whereas the Appellant was unable to do so. Mr Wheaton responded to that by submitting that the fact that Ms Jones had been disciplined was not only not decisive but was not even relevant. I cannot accept that. It was a significant part of the complex of factors which the Employment Tribunal had to weigh.
13. Mr Wheaton referred in support of his argument on this aspect to paragraph 9.83 of the Reasons, where the Tribunal set out the terms of a note made by a Trust manager called Mr Child, almost a year before the Appellant's eventual dismissal, in which he said:

"Breakdown of working relationship. MJ bully LS not being reasonable. As MJ not moved or dismissed therefore dismiss LS."

That, he said, showed that the Trust at least regarded itself as having its hands tied by not having dismissed Ms Jones for the initial episode of bullying, and that supported the inference that the Tribunal also saw it that way. However, with respect, that ignores the fact that in the second half of the selfsame paragraph the Tribunal goes on to describe Mr Child's comments as "unfortunate" and "open to adverse inference" and then to say that it had been put to one of the relevant decision makers (Mrs Hope) in the course of her oral evidence and that she had disavowed it. The Tribunal said that it accepted her evidence. There was therefore a clear factual finding that the attitude apparently evinced in Mr Child's admittedly short note did not reflect the Trust's decisive thinking. That is precisely the kind of factual decision that cannot be challenged on appeal.

14. Mr Wheaton also relied on paragraph 64 of the Reasons, in which the Appellant's attitude to working with Ms Jones in the future is describe as "intransigent", although it is not clear from the context whether that is intended to state the Trust's view or to represent the Tribunal's own characterisation. Whichever it is, I agree that the adjective is not well chosen, since it suggests that the Appellant's resistance with working with Ms Jones was voluntary, if not indeed wilful, rather than, as the evidence showed, a phobic reaction. But the use of that wrong adjective cannot undermine the substance of the Tribunal's reasoning as it appears from the Reasons as a whole.
15. I would accordingly dismiss grounds 2 to 5 of the appeal. My reasons for doing so essentially echo those given by Simler J in dealing with the grounds of appeal advanced before her which, though not quite the same, were to substantially the same effect.
16. I can deal with the other two grounds more briefly.
17. The first, ground 1, is a challenge to the Tribunal's finding that the Appellant was not suffering from the disability in question, being characterised as "depression/anxiety/phobia", until late December 2011, about a month after, as appears from Simler J's summary of the facts, she had finally gone off sick following the unfortunate encounter with Ms Jones. Mr Wheaton submits that the Tribunal should have found that the Appellant was in fact suffering from a disability throughout her employment, namely an increased vulnerability to stress as a consequence either of her original epilepsy or of the operation which she had undergone to cure it. The fact that she was suffering from such a condition was, he said, demonstrated by the fact that, notwithstanding the apparent success of the operation the Appellant still suffered from pre-epileptic auras.
18. The Tribunal addressed that very question, describing the claimed disability at paragraphs 25 to 30 of the Reasons, in terms taken from the medical evidence before it, as "post-operative impairment/personality disorder" and decided that the medical evidence did not support the case that the Appellant suffered from such a disability. It dealt in particular at paragraph 30 with the significance of the fact that she continued to experience pre-epileptic auras. There is no challenge to the conclusion which it reached on the basis of the medical evidence, but Mr Wheaton submits that the Tribunal was wrong to reach the conclusion it did only on the basis of that evidence, or lack of it. He referred us to the Appellant's own witness statement in the Employment Tribunal and to the separate statement in which she set out the impact of the matters on which she relied as constituting a disability on her ability to perform normal day-to-day activities. He said that the conclusion which the Tribunal should have drawn from that was that, notwithstanding the lack of any support in the medical evidence, she was in fact suffering from a disability of the kind that she claimed.
19. In my view, in the circumstances of this case the Tribunal was fully entitled to require medical evidence to support a case of the type being made. But I would also say that I have looked at the passages in the Appellant's witness statements which are relied on, and even if they went unchallenged before the Tribunal, which is a point I do not have to explore, they clearly do not have the effect that the Tribunal was bound to find a disability of the kind now contended for.
20. I also have to say that I cannot see that the case was put this way in the EAT, where the only criticism as regards this aspect was that the Tribunal should have found that the Appellant was disabled by depression/anxiety/phobia about a month earlier than the date that the Tribunal in fact found.
21. I should also add that I cannot see what impact a different finding would have had on the most important issue in the case, namely whether the Appellant's dismissal was discriminatory or unfair, since that depends on the circumstances as they were following the development of the disability which the Tribunal did in fact find. That, however, is by way of being a makeweight because I appreciate that there were other issues in the case.
22. I would therefore dismiss ground 1.
23. That leaves ground 6, which is that the Appellant did not have a fair hearing in the Employment Tribunal as a result of the incompetence of her representative, Mr Oram, who was not legally qualified, and who, on the face of the Tribunal's Reasons themselves, clearly had some difficulty in presenting her case.
24. I should say by way of preliminary that I share the doubts expressed by Hughes J in R (Rentmore) v Hampshire County Council [2004] EWHC 3193 (Admin) - see in particular paragraph 71 – about whether the incompetence of a party's representative can ever give rise to an error of law such as to give this court jurisdiction to entertain an appeal in the context of ordinary inter partes proceeding such as these. Different considerations apply in the context of criminal proceedings, or proceedings of a quasi-criminal character such as professional disciplinary proceedings. But in an ordinary civil dispute of this kind it is hard to see how it would be just to visit on one party the consequences of the other party having chosen to instruct or engage an incompetent advocate, quite apart from the practical and resource difficulties that would ensue if such a ground of appeal were regarded as admissible.
25. I should also say by way of preliminary that I find it very hard to see how it could be right to allow such an appeal to be advanced for the first time in this court when the Appellant was willing to instruct Mr Oram in the EAT, notwithstanding the criticisms that she now wishes to advance of his conduct of her case in the Employment Tribunal – with the consequence, of course, that these points were not explored in the EAT at all. She knew then all the matters on which she now wishes to rely, and she could have done at that stage what she has done now and sought other representation.
26. However, I prefer not to decide this ground on either of those bases. As regards the latter, I would not wish to be too critical of the Appellant in the unfamiliar circumstances of litigation and where it is not always easy to obtain a change of representation. As regards the former point, any decision on this basis might require a disproportionate examination of the relevant principles and authorities before deciding whether such a ground could be allowed never, rather than hardly ever.
27. Instead I can deal with this ground on the more straightforward basis that the matters which Mr Wheaton relies on in support of it do not come close to establishing that the Appellant did not have a fair hearing. The Employment Tribunal does indeed make it clear, although it expresses itself quite temperately, that it did not have the help that it could have expected from a professional advocate on some of the points in the case, particularly in the formulation of Mr Oram's closing submissions on behalf of the Appellant, and more particularly still on the issue relating to the nature and extent of her disability, as to which it had largely to cope for itself in analysing the medical evidence. It also refers to the fact that Mr Oram wrote to the Tribunal after closing submissions, explaining that he had not been very well at the time of making them - it appears that he himself suffers from some unspecified disability - and offering the Tribunal the opportunity, though he acknowledged that it might not be in the interests of justice, to reconvene to hear further submissions. The Tribunal makes it clear that it considered that application carefully and concluded that it was in the interests of justice to proceed with its deliberations rather than have a further hearing. It observed:

"We were mindful this was a long case where throughout the claimant, through Mr Oram, repeatedly made his points on numerous issues which were akin to contemporaneous submissions."

In other words, it was confident that he had understood the points that the Appellant and Mr Oram wished to make. There is no challenge to that specific decision on that part of the Tribunal, but Mr Wheaton relies on the episode as further evidence of Mr Oram's incompetence.

28. However, Employment Tribunals have to deal with difficulties of that kind very regularly, both when parties are unrepresented in complex cases, and where they are represented by people who are not professional advocates. They are well able to do whatever is necessary in order to ensure that they understand the real issues and arguments and are familiar with the essential evidence, even if it requires more effort than if the case had been professionally presented. It is quite clear that the Employment Tribunal undertook that task, and undertook it effectively, in this case. I take two examples. First, one of the matters to which the Tribunal refers is that the issues had still not been clearly defined at the start of the hearing, notwithstanding there having been more than one case management hearing in which the claimant had been represented by Mr Oram. However it took the trouble on the first day of the hearing to work with the Trust's counsel and Mr Oram to identify the issues. A list of issues was produced overnight by counsel, and Mr Oram made some changes to it. That was the list of issues on which the case proceeded and no criticism is made to the effect that it did not raise the right points. Secondly, I have already referred to the fact that the Tribunal looked carefully at the medical evidence in relation to disability and there has been no submission before us to the effect that the way in which it dealt with that evidence, without the assistance that it had hoped for from the representatives, shows any error. I give those simply as examples of how the Tribunal clearly coped with the difficulties caused by the lack of professional representation on the Appellant's part.
29. Mr Wheaton also, rather faintly, relied on a complaint by the Appellant herself, not reflected in anything said by the Tribunal in its Reasons, that she sent Mr Oram in the course of the hearing (presumably overnight) an e-mail setting out questions that she wished him to put to the Trust's witnesses but that he did not ask those questions, or in any event all of them. Any complaint of that kind, even if it were otherwise admissible, could not get off the ground without the support of a particularised witness statement served in good time, giving evidence of not only the specific criticisms of the advocate (in this case the questions he was asked to ask but did not) but also of the difference that the failure to ask those questions made. It is alas very often the case that parties do not have a good appreciation of the points that really matter in a case and those that do not. It certainly cannot be assumed that even if it were established that Mr Oram did not ask a question that he was asked by his client to ask any unfairness resulted. We have no such evidence before us. The Appellant did seek, at a late stage, to rely on a witness statement which consists very largely of her own commentary on the Tribunal's Reasons, over many pages, on a paragraph-by-paragraph basis. But although there is a brief mention of the episode to which I have referred there is no kind of factual basis of the sort that would be required.
30. The truth is that the difficulties that may have arisen as a result of deficiencies in Mr Oram's abilities as an advocate were plainly not such as to give rise to an unfair hearing. On the contrary, it is perfectly apparent that over this long hearing the Tribunal digested all the materials, addressed all the issues and reached entirely fair and sustainable results. I would accordingly dismiss ground 6 and thus the whole appeal.
31. I would wish to conclude, as Simler J did, by expressing my sympathy with the Appellant personally. She has had the grave misfortune of suffering from severe epilepsy for much of her life. She took the brave step of undergoing major neurological surgery to cure that condition and then took further impressive steps to acquire a professional qualification and worthwhile employment, and it is not difficult to see how deeply distressing it has been to her then to lose that employment. But the Employment Tribunal could not decide this case, and nor can we, on the basis of personal sympathy. It had to decide whether the Trust acted reasonably in a situation, not of its own making, which was difficult for it, as well as for the individuals concerned, and I can see no error of law in the conclusion which it reached.

LORD JUSTICE McFARLANE:

32. I would associate myself entirely with the concluding remarks that my Lord has just made as to the degree of sympathy and understanding that anyone who is exposed to the facts of this case must have, for the reasons that my Lord has explained. Because of that approach, alongside my Lord, I have looked keenly at all that has taken place in these extended proceedings to see whether there are grounds for concern that the decisions of the Tribunal and then the Appeal Tribunal can be properly challenged. For the reasons that my Lord has so clearly given, I conclude, as he does, that there are no grounds for challenge here and therefore, despite our sympathy, the inevitable consequence is that this appeal must be dismissed.

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