United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HENNEY (Solicitor) Employment Law Appeal Advice Scheme


 


JUDGE BYRT QC: This is a preliminary hearing in an appeal of a decision of the Industrial Tribunal at London (North) on 24 April 1996 after a three-day hearing. The Tribunal unanimously decided that the Applicant, now the Appellant, was not unfairly dismissed and that she had not been unlawfully discriminated against by her employers, the Respondents, on racial grounds.

The facts are as follows: the Appellant was employed by the Respondents since about 1988, latterly in the directorate of housing. Her section was headed by a Mr Davey who, together with a subordinate, were both white. In the same section there were another four black people, all of them somewhat younger than the Appellant. The Industrial Tribunal's account of the facts indicate that the Appellant was unhappy in her new position from the start. They record the fact that there were disputes between herself and her colleagues culminating on 1 March 1994 when the Appellant reported to Mr Davey, who was the head of her section, that a Miss Deterville was planning to kill her, that she had a knife and a gun, that she was tape recording her conversations at lunch time and was accusing her of associating with prostitutes and drug-takers.

In the second half of March the Appellant went on sick-leave, allegedly caused through stress. She returned at the beginning of April and on 20 April she rang the police and reported that she was being threatened with a gun and a knife and that her life was in danger. On this occasion she was sent home by the Respondents and an appointment was made for her to see the Respondents' medical adviser on 3 May. Unhappily the Appellant did not keep that appointment and it subsequently transpired that she did not do so as a matter of principle.

Further appointments were made for her and it was indicated that if she did not attend those next appointments it would be dealt with as a disciplinary matter. The Appellant held fast to her principle and did not attend those subsequent medical examinations, and so matters came to a climax on 8 September when a disciplinary hearing was arranged. The Industrial Tribunal found that this afforded the Appellant the opportunity to say why she was not attending the medical appointments. Unhappily the Appellant failed to attend the disciplinary hearing. The conclusion of the disciplinary panel was that she should be given a final written warning. They found that she had failed to comply with what they deemed to be the reasonable requests of the Respondent, that she should be medically examined. She was told of her right of appeal and she chose not to exercise it.

Further appointments were made with the medical adviser, but she did not keep these. On 18 November there was a further disciplinary hearing. Again, the Appellant did not attend, but what she did do was return all the papers with which she had been furnished for this disciplinary hearing with abusive messages scribbled upon them alleging incompetence by the Respondents and suggesting that she was the victim of a racist plot. As a result of that, in the absence of any evidence from her because she had not attended, the Respondents summarily dismissed her.

The Industrial Tribunal came to the conclusion, with regard to the claim that she had been unfairly dismissed, that the Appellant had displayed some bizarre behaviour on her own account: that it was not an unreasonable request that her employers had made that she should be medically examined. In their reasons they stated that they had asked her to be medically examined so that they could eliminate one important aspect of what was becoming an intransigent problem to do with the Appellant's conduct. Before they took further action, they wanted to make sure there was no sad medical reason for her behaviour. They then found as a fact that the Appellant's refusal to attend the medical appointments left the Respondents with little choice but to proceed to deal with the matter as a disciplinary one.

The Industrial Tribunal found in their reasons that the Appellant had been given every chance to put her case, but she had failed to take advantage of that opportunity. Ultimately they found it was reasonable of the Respondents to dismiss the Appellant on account of the intransigent behaviour she had manifested. In so determining, they came to the conclusion that the Respondents had acted fairly.

So far as the allegation of racial discrimination is concerned, the Industrial Tribunal directed themselves that the burden of proving this complaint was upon the Applicant. They concluded that there was no evidence from which inferences might be drawn that she had been treated less favourably because of her race. Those are the findings of the Industrial Tribunal.

The Appellant must appreciate that this Tribunal has no power to make findings of fact. Findings of fact are for the Industrial Tribunal. In reviewing their decision, the jurisdiction of this Tribunal is to look at the basis upon which the Industrial Tribunal approached the matter and upon which they directed themselves as to law. If they are satisfied that they have applied the law correctly, and made findings of fact which were open to them on the evidence, this Tribunal has no further function other than to dismiss the appeal. Sometimes it is contended on behalf of the Appellant that the finding of the Industrial Tribunal is a perverse finding. When this Tribunal comes to review such a case, it has to ask itself as to whether there was any evidence upon which an Industrial Tribunal might reasonably have come to the conclusion that it did. If there was evidence, it matters not that this Tribunal would have come to a different decision; this Tribunal has no alternative but to dismiss the appeal because it cannot disturb the Industrial Tribunal's findings of fact.

In this particular case, the Appellant has been represented before us by Mr Henney as a representative of ELAAS. He has advanced a number of points beginning with the first to the effect that the Respondents' policy statement had not been complied with by them, in that it states:

"Gb 1. Any member of staff who has been absent through sickness for a period of three months, consecutively or in total in any twelve month period must be medically examined by the Occupational Health Adviser. Chief Officers may also require staff to undergo medical examination/assessment at any time they are concerned about their level of sickness or a particular absence."

Mr Henney's point in the first instance is that the findings of the Industrial Tribunal are that the Respondents had a suspicion that the Appellant might be suffering a degree of sickness but did not follow the requirements of that provision. The substance of this point depends upon whether the policy statement formed part of the Appellant's contract of employment, either by express or implied implication. There is no evidence before us which supports that the policy statement did form part of the Appellant's contract and accordingly the proper approach of the Industrial Tribunal would have been to consider whether, the Respondents' request of the Appellant that she should attend a medical examination, was reasonable in the first place. The Industrial Tribunal quite plainly came to the conclusion that the request was reasonable. The Appellant's refusal to co-operate with that reasonable request in itself was unreasonable, and left the Respondents with little choice but to proceed with the matter thereafter as a potentially disciplinary matter.

Another point raised by Mr Henney was that in this particular instance the Appellant had raised an informal grievance which had not been properly dealt with by the Respondents. On the contrary, they made use of the substance of her grievance as the basis of perceiving that the matter was one of discipline, and that this in itself was unfair.

It does seem, from the Industrial Tribunal's reasons, as if they attach some blame to the Respondents for not treating more seriously the Appellant's alleged grievance at an early stage. Once matters begun to escalate as from 1 March, they made findings to the effect that Mr Davey, the person in charge of this section, had thereafter investigated the allegations made by the Appellant thoroughly and with care. It is not for us to decide whether that was the position or not, but the Industrial Tribunal decided that the Respondent had thereafter proceeded reasonably and fairly in accordance with what he had found in those investigations.

Another point raised by Mr Henney is that there was manifest inconsistency between various findings of the Industrial Tribunal as stated in their reasons - in the one part finding that the Appellant had brought the eventual consequence of her dismissal upon her own head, so as to justify the Tribunal's conclusions that she had been fairly dismissed, when in the last paragraph of their findings they indicated that the Appellant was only partly to blame for what had happened.

When reviewing an Industrial Tribunal's reasons, it has been stated many times by the Court of Appeal and by this Tribunal that it is wrong to scrutinise each sentence, each phrase used by the Industrial Tribunal in setting out its reasons to find a perceived error. It has repeatedly been said it is wrong this Tribunal should scrutinise the reasonings of the Industrial Tribunal and the phraseology used, with a fine toothcomb, to see whether a misdirection of law can be made out of the end result. We have wondered what was meant by the Industrial Tribunal when they used the phrase that the Appellant was "partly to blame" for what had happened. We have assumed that thereby they were referring to the fact that the Respondents, initially, prior to 1 March, had not treated the Appellant's complaint with the seriousness that it deserved.

Everything thereafter which followed in the reasons belies that phrase that the Appellant was "partly to blame" and it is quite apparent from the overall findings of the Industrial Tribunal that they thought that it was the Appellant's intransigent behaviour which brought all the consequential disciplinary hearings and eventually the dismissal upon her own head.

We, at the end of the day, have to ask ourselves in relation to the allegation of unfair dismissal and racial discrimination, whether there was evidence before the Industrial Tribunal, which would justify in law the findings that they came to. We do not see on reviewing this matter with some care and with the considerable assistance that Mr Henney has been able to give us, that there is any indication that the Industrial Tribunal had mis-directed itself on law or fact, so that it could be said their findings were perverse. In the circumstances we do not see that we have any alternative but to dismiss this appeal at this preliminary hearing stage. That is the order that we make.