United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 798_93_1003

Appeal No. EAT/798/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 March 1995

Before

HIS HONOUR JUDGE H J BYRT QC

MR T S BATHO

MR P SMITH

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MR D PRINCE          APPELLANT

MIDLAND ELECTRICITY PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR R PERKS

(OF COUNSEL)

Mr R H Browne

Company Solicitor

Midlands Electricity PLC

Mucklow Hill

Halesowen

W Midlands B62 8BP


 


JUDGE BYRT QC: This is an appeal from a decision dated September 1993 of an Industrial Tribunal sitting at Birmingham. By their decision they dismissed the application of the employee, Mr Prince, to the effect that he had been dismissed unfairly.

The background facts, as appear from the Tribunal's reasons, are as follows.

Mr Prince had been in service with the Electricity Board since 1942 and so at the date of the termination of his employment on 30 April 1992 he was very close indeed to the 50th anniversary of his employment by them. He had been trained as an electrician and had remained in service with the Respondents in that capacity throughout. It is a fact that, throughout that 49 years of service, he had never been the subject of disciplinary proceedings and it is clear he enjoyed an exemplary record.

In 1965, the employers began a scheme called the emergency shift system which provided emergency services for domestic customers in Birmingham and Solihull. The electricians worked in shifts. They had the facility of a van and they went out and visited various emergency calls on their own and it stands to reason that anybody entrusted with that responsibility had to be of high quality and a trusted worker.

Problems began for Mr Prince in 1987 when the emergency services were transferred from a depot at George Road, Erdington to one at Kings Road, Kings Heath. Unhappily, at that time, Mr Prince was in hospital for some routine operation. Whilst there he was visited by Dr Massey, a doctor in employment with the Electricity Board. Mr Prince felt that he had somewhat pressurised him to return to work. This eroded Mr Prince's confidence in the doctor. It is fair to say, in parenthesis as I narrate the story, that it would seem from a letter, included in the bundle of documents, that the doctor's bedside manner was not to everybody's liking.

In October 1987 Mr Prince started back, this time of course, at the depot at Kings Heath. Straight way he noticed certain differences. He now became responsible and accountable to a new foreman. From the findings of the Tribunal, it would seem that, over the course of time, a difficult atmosphere developed between the two. Mr Prince alleges that there were approximately four main sources of complaint. The first was in relation to the timesheets he had to submit regularly. What he found was that the foreman was altering his timesheets, often without reference to himself. The second ground of complaint is that Mr Davey did not afford him an appropriate share of the available overtime; in fact Mr Prince's complaint was that he favoured others. Mr Davey denied that and said he allowed Mr Prince a reasonable measure of overtime but took his age into account in making his allocations. Again, in parenthesis, I say that there is a document, A16, which shows indeed that Mr Prince was getting less overtime than other people were. Thirdly, Mr Prince says he was given unpleasant tasks. By that he meant he was given tasks which were expensive of his time. He was given calls to make which were in city centres and frequently he got caught up in traffic problems which again reduced his productivity because he could only do a limited number of such cases in a day.

Mr Davey, the foreman gave evidence. He said Mr Prince's output was less than others. Whereas others managed 8 or 9 calls in a day, Mr Prince could only manage 5. Once more in parenthesis, I should say that, during argument, Mr Perks who has appeared on behalf of the employers made plain that never at any time, has any criticism been made of Mr Prince's performance in the execution of his work.

The fourth criticism, considered by the Tribunal, was that he was never allowed to carry over holidays from one year to the next.

In short Mr Prince's case, as it was considered by the Tribunal, was that he had been victimised by the management at the new depot, and in particular by Mr Davey.

The next aspect the Tribunal had to consider was Mr Prince's absences latterly from work due to illness. In the period May 1988 until the time he left in 1992, he was absent during the period February 1989 to August 1990 for a period of some 90 days, 57 of those days being due to a broken wrist through some non-industrial accident. In October 1990 he had 9 days off work because of a head injury; again because he had had a fall at home. In November 1991 Mr Prince took 9 days off because of anxiety and depression. Having returned to work some two weeks later, he was again absent from work some two weeks later because of depression. This, as the Tribunal remarked, caused his employers an especial anxiety, having regard to his age and the nature of the work that he did. As a result, on 11 December 1991 he had a call from a Ms Sherrington who was part of the welfare team employed by the employers, and a Mr Berkley. Essentially Ms Sherrington's purpose on that occasion was to enquire whether Mr Prince would be agreeable to meeting Dr Massey so that that doctor could make an assessment. Mr Prince was unwilling to do so by reason of the experience which he had had at an earlier stage and his dislike of him.

The outcome of the meeting was, however, an unhappy one. Ms Sherrington in her evidence indicated that she found Mr Prince sad and confused to such an extent that she herself was distressed by what she saw. She paid another welfare visit on 5 February 1992, when once more, her purpose was to persuade Mr Prince to see Dr Massey. When Mr Prince declined to do so, she sought to persuade him to agree to Dr Massey writing to Mr Prince's General Practitioner with a view to agreeing his state of health at the time. I think it is fair to say that Mr Prince reluctantly agreed to that but he stipulated certain conditions which were not, in due course, complied with. Once more Ms Sherrington recorded that she had experienced Mr Prince crying and shaking. She stated he was in a very emotional state.

On 31 March 1992 Dr Massey did write to Mr Prince's General Practitioner and the letter he wrote is exhibited amongst the documents at page 7. In passing we noticed an unfortunate factual statement in that letter which suggested Mr Prince had been the victim of a fit in November 1991. That clearly was an inaccurate statement. We have seen the medical notes the Doctor would have referred to. He was probably referring to a note which says that "following an injury Mr Prince was fit to return to work". It contained no suggestion that he was the subject of a medical condition. The main purpose of the letter was to get the General Practitioner's comments. Dr Massey expressed his concern whether Mr Prince was in a condition wherein he could safely handle electrical conductors and other dangerous equipment. He was inviting the General Practitioner to give an assurance that Mr Prince would be unlikely to work again so that he, Dr Massey, could tender advice to Mr Prince's employers to the like effect.

The General Practitioner wrote back saying it was unlikely that Mr Prince would return to work in his present occupation. Dr Massey felt that that was sufficient for his purpose. He saw no sense in distressing Mr Prince further by requiring him to attend his surgery for a medical examination. Accordingly, taking account of his age and the occupation Mr Prince followed, he advised management that Mr Prince had come to the end of his useful working life and he tendered the diagnosis that he was suffering an acute psychotic state which meant that he was permanently unable to carry out any duties the Company might be able to assign to him. Following upon that recommendation on 30 April, 1992, management retired Mr Prince, stating to the Tribunal that before doing so they had considered whether there were any alternative jobs they could offer him. They decided there were none they could put him to. They also had in mind the fact that Mr Prince, throughout, was most reluctant to take any other job of a different nature by way of re-deployment.

On the health aspect Mr Prince made a couple of observations and an admission. First, he said that at this time he was under pressure from Ms Sherrington to retire and in particular he found the visit she paid him on February 1992 oppressive. In consequence, he says, he was ultimately over persuaded by her to consent to Dr Massey writing to the General Practitioner. However he also admitted in evidence that his own GP had said to him that there was not much point in his returning to work in his then condition and he admitted that whilst he was ill he was not in a condition to return to work. In the course of the evidence he said that whilst he was improved, he had not improved enough to return to work and that, of course, was the position at the date of the hearing in March 1993.

Mr Prince called evidence in support of his application. He called a Mr Avery who was a divisional manager. He said that in October 1990 he had discussed with Mr Prince the question of victimisation, especially in relation to Mr Davey's conduct towards Mr Prince and the gist of his evidence, as it is related in the Tribunal's Reasons, was that Mr Avery found Mr Prince very emotional. He, Mr Prince, had difficulty in particularising the aspects upon which he relied as instances of victimisation. He said that he made enquiries but all that he could discover was that there did exist an unhappy atmosphere between Mr Prince and his supervisors but that he could uncover no evidence of victimisation.

Mr Nicholls, a senior foreman, was also called by Mr Prince. He said that he had investigated complaints relating to overtime and the unpleasant tasks which Mr Prince alleged he had been given but he came to the conclusion that Mr Prince had not been treated differently from anyone else in the depot. Mr Crump, who worked with Mr Prince, bore testimony to the fact that he was a meticulous worker and whilst he, himself, got on with Mr Davey, he vouched the opinion that Mr Davey did tend to favour his own lads, the people who were at the depot originally.

Having considered all those facts the Tribunal came to the conclusion that the reasons of the employers for dismissal was Mr Prince's ill-health and they concluded that that was a justifiable reason for dismissal within Section 57(2) of the Act.

So far as specific findings were concerned, on the question of victimisation by Mr Davey, they found in relation to all the specific complaints Mr Prince had made that Mr Davey had not singled out Mr Prince specifically. They found that the employers had attempted investigation of Mr Prince's complaints; that they had found this difficult owing to the non-specific nature of the allegations made by Mr Prince and in making their findings they did criticise the employers in two respects. They criticised the employers for not telling Mr Prince the details of the investigations they had carried out and their conclusions. They also criticised the employers for the fact that a request Mr Prince had made in March 1990 for a welfare visit had, been overlooked and overlooked until the visit of Ms Sherrington in December 1991.

Again, on the specific findings by the Tribunal, they found that Dr Massey was able, on the slender evidence that he had and the letter from the General Practitioner, to form a view of Mr Prince's medical condition. They concluded that his approach to the problem was reasonable in view of the fact that his views were shared by the General Practitioner and also, in effect, admitted by Mr Prince in evidence and came to the conclusion that his views were not views which it was unreasonable for him to hold.

On the general findings, the Tribunal concluded that the employers had considered alternative work but they were in difficulties by reason of the fact that Mr Prince was adamant he wanted the same job back. They also found that they could not accept Mr Prince's contention that he had had pressure put upon him to retire firstly by Ms Sherrington and then by Dr Massey. They found that the welfare visits made by Ms Sherrington were conducted reasonably and that Mr Prince had not satisfied them that his medical condition was due to the way that he had been treated. Accordingly, they found he had not been unfairly dismissed.

Our views on consideration of this case are as follows; that anyone who has heard the account of the facts related to us must inevitably agree this is a sad case. Mr Prince has given many years of good service and for some 45 years nothing seems to have gone wrong, on the contrary everything seemed to have gone right, that was until his operation in October 1987 and his subsequent transfer to the new depot and a new manager. It must have been difficult in any event for him at the age of 59 as he was then, to adjust to the new style.

Not only is this a sad case but it is a difficult case. Firstly, and this is something of course with which the Industrial Tribunals will be familiar, the Applicant was appearing in person with the help of a friend. There were some conflicts in evidence and the Tribunal had to decide where the truth lay and this inevitably is an invidious task. There was documentary evidence which did not tie up with some of the oral evidence as well.

In arguing this matter before us Mr Prince, assisted by Mr Whiskons, has marshalled the facts coherently and in a helpful way, and has argued his case with moderation and good sense despite, we must say, the fact that he obviously has been handicapped with a burning sense of grievance. We think Mr Prince realises that the powers of the Employment Appeal Tribunal are limited. It is limited to scrutinising the reasons of the Industrial Tribunal to find whether there is a point of law where the Tribunal has fallen into error. It is not for us to try over again the difficult issues of fact arising in this case. We have listened to Mr Prince's submissions at length and have weighed them with considerable care but it is clear that Mr Prince has, in this instance, a difficult case to argue in that there is no straightforward point of law where we are able to say that the Tribunal fell into error.

He has criticised the Tribunal in two major respects. First, as to the tribunal's procedures. He criticises the Chairman for the way in which he controlled and regulated the proceedings. He curtailed Mr Prince's ability to cross-examine Ms Sherrington - an important witness in his case - he says. He also dictated the order in which certain of the witnesses should be called in order to suit the convenience of those witnesses and that, perhaps not surprisingly caused Mr Prince some difficulty. He refused an adjournment at the stage of an Interlocutory Review on 11 March 1993, some four days before the full hearing on 15 March. On that occasion he refused an order for discovery of timesheets. And then Mr Prince says he was caught out somewhat by being handed the Respondents' Skeleton Argument on the morning of the hearing. Again, he says, he was caught out by the fact that Mr Davey, perhaps the most important witness the Respondents called before the Industrial Tribunal, had not actually been listed as one of their witnesses.

The second main criticism Mr Prince makes is that the Tribunal were guilty as he says of coming to certain perverse findings. Those he summarised in this way. To find that the welfare arrangements made by the employers were reasonable was a perverse finding and in this respect he points to his criticisms of the conduct of Ms Sherrington on the occasion of her welfare visits. He refers to what he calls the obvious unfairness on the overtime issue, reflected in the document A16. However perhaps more fundamentally still, the Tribunal overlooked, he says, the clear pattern which demonstrated that the ill-health he suffered was due to the way he had been treated and victimised by Mr Davey and pressurised by Ms Sherrington and by Dr Massey. How do we find, on these particular criticisms?

First of all, as to the procedural defects: In order that we might set aside the Tribunal's decision, we must be satisfied that the procedural defects were such as to amount to a breach of the rules of natural justice, a breach which prevented a fair trial being conducted. We have to accept that the Chairman, in chairing an industrial tribunal, has a wide discretion in regulating and controlling those proceedings; indeed it is his duty to do just that. He has to ensure not only a fair trial but that the trial proceeds with expedition. He refused the adjournment on 11 March. Sometimes it is not easy to decide whether an adjournment should be granted. That is sometimes a complex decision to come to but nothing has been put before us to show that in that particular respect, in coming to that decision, the Chairman exercised his discretion injudiciously.

Similarly, with regard to discovery: Part of the responsibility of the Chairman is to ensure that the documentary evidence put before a tribunal is kept within reasonable bounds. Mr Prince's case here had not been that he alone had his timesheets tampered with. Indeed, Mr Davey was somewhat liberal in his alterations of other people's timesheets as well, and in order for Mr Prince to be able to draw any conclusions of a relevant nature, not only would his time sheets have had to be produced but also those of a number of other employees too. Those are just the sort of considerations which might or would have affected the Chairman's decision whether to allow discovery to be expanded and extended to include those items as well.

So far as the ordering of witnesses is concerned, this sometimes does cause difficulty where one of the parties to litigation is acting in person, but it is frequently the case that a Chairman of a Tribunal or a Judge in his Court has to take account of the convenience of witnesses and do what he can to assist them, to give evidence without dislocating their lives. Again, a Chairman or a Judge has quite frequently and properly to take a hand in regulating the proceedings in that way.

So far as the Respondents' Skeleton Argument is concerned: The point here is that the purpose of the Skeleton Argument is not especially to forewarn the opposite party as to the case they have to meet in argument. Its purpose is to speed up the proceedings. If the Skeleton Argument is down on paper, the party does not have to recite every point which forms their case; it is done on paper and the other side can see it and argued to that paper. Accordingly there is no prescriptive right as such for one party to have the Skeleton Argument in advance. However, having said that, if there is a directive of a tribunal or indeed of a court that such Skeleton Argument should be produced, then it must be produced.

We cannot find here, in relation to any of these criticisms, a matter in which either the Chairman, or the employers in this case, failed to act as they were required, nor any matter in respect of which the Chairman failed to exercise his discretion judicially so as to prevent a fair trial.

So far as the perverse findings are concerned the Tribunal has to weigh the evidence of the witnesses that appear in front of them. Sometimes the evidence of those witnesses are in contradiction, one to another. The Tribunal has to assess the documents that are produced in evidence. Sometimes those documents are again at odds with the oral evidence given by witnesses and the Tribunal's job, any Court's job, is to do what it can to reconcile the irreconcilable so as to make findings that are coherent and in accordance with what they believe to be the true findings of fact. That is not an easy task as anyone who has been entrusted and privileged to be assigned the task of judging cases will know. But what has to be recognised by any Appellant before a Tribunal is that the Tribunal at first instance is best placed to make the assessment of the witnesses' evidence and assess that evidence against the documentary evidence produced before the Tribunal. They see the witnesses, and are able to judge them by their demeanour and assess their characters and personalities. In those respects, they have an advantage which an Appeal Tribunal such as this does not have.

So far as the overall allegation that the Tribunal did not look to the overall broad picture they had Mr Prince's case that his ill-health was due to the employers' conduct and victimisation. They had the employers' case that here was a new depot, new management and Mr Prince had gone to it at an age when perhaps he was less flexible than a younger man might have been. Faced with those two conflicting cases, the Tribunal came to a finding that they were not satisfied Mr Prince's condition was due to the way in which he had been treated. A case of constructive dismissal has not been alleged here and it is questionable whether, in law, one could have been so alleged. What did come out in evidence was that, at the time of the hearing and at the time of the dismissal in April 1992, there was ample evidence upon which the Tribunal could have found that Mr Prince was ill, ill in the sense that he was permanently incapacitated from doing his work in the future. On that issue, the Tribunal had before it the evidence of Dr Massey, coupled with the letter from the General Practitioner expressing a view that he was so incapacitated. We have to ask ourselves whether the view the Tribunal came to on that evidence, was one that no reasonable Tribunal could have come to. Similarly, in considering the evidence of Ms Sherrington and the finding the Tribunal made upon it we have to ask ourselves the same question.

We have considered this matter in all its aspects with care and we cannot find that the ultimate decision of the Tribunal was one which no reasonable Tribunal could have come to. They came to the conclusion that Mr Prince, at the time of his dismissal, was suffering from ill-health of such a nature as to incapacitate him from continuing his highly responsible job in the future. As a result the employers had a reason which would justify them dismissing him pursuant to the provisions of Section 57(2) of the Act.

We are satisfied that the Tribunal directed itself correctly as to the law. We can find no fundamental error which would entitle us to say that their decision was one which no reasonable Tribunal could have come to. In those circumstances we must dismiss the appeal.