United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A OKAI (of Counsel) MESSRS JOSHUA & USMAN Solicitors Lord Denning Court Grummant Road Peckham London SE15 5PZ
For the Respondents	MS N JOFFE (of Counsel) THE SOLICITOR London Borough of Lambeth Lambeth Town Hall Acre Road Brixton London SW2 1RL


 


JUDGE PETER CLARK: The Appellant, Ms Blackwood was employed by the Respondent, the London Borough of Lambeth from 10 December 1984 until her dismissal effective on 10 March 1995, latterly as a Neighbourhood Administration Officer at Central Stockwell Neighbourhood Housing Office. She performed a crucial administrative role because she was the point of contact between the local Council tenants and the Respondent's Housing Department. Her manager there was Mr Audley Phillips.

Following her dismissal she presented an Originating Application to the Employment Tribunal complaining of unfair dismissal and sex discrimination. It was her case that she had been continuously sexually harassed over a period of 4 years by Mr Phillips and that that was the real reason for dismissal; alternatively if the reason for dismissal was that given by the Respondent, namely frequent absence; the dismissal was unfair. The claims were resisted.

The matter was heard by a Tribunal sitting at London (South) under the Chairmanship of Mrs T J Mason over 4 days in June 1997. Following that hearing, in a reserved decision promulgated with extended reasons on 2 July 1997, the Tribunal dismissed both complaints.

Against that decision Ms Blackwood appealed by a Notice dated 18 July 1997. By that Notice she challenged the Tribunal's findings both as to sex discrimination and unfair dismissal. She has now abandoned the appeal against the sex discrimination finding. Accordingly, it is sufficient for us to record that the Tribunal flatly rejected the Applicant's complaint of sexual harassment against Mr Phillips or that her dismissal was due to her complaints about him.

We are therefore left with the appeal against the finding of fair dismissal.

In the course of their reasons the Tribunal meticulously record the chronology of events leading up to the dismissal in paragraphs 4-15. We do not propose to repeat those findings of fact in this judgment. It came to this. Ms Blackwood was frequently absent from work from May 1992 until her dismissal. Each absence was certificated by her General Practitioner, Dr Singh. However, at the time of her dismissal both the Respondent's own medical officer Dr Siva, and an independent consultant Dr Wood, had passed the Appellant fit for work. In these circumstances a reconvened sickness panel, sitting on 2 March 1995 recommended that the Appellant be dismissed on the grounds of frequent absence under the Respondent's Frequent Absence Procedure. That recommendation was adopted by the Director of Housing. An appeal against the dismissal decision failed.

This appeal first came on for a preliminary hearing before a differently constituted division on which I sat on 24 April 1998. On that occasion we adjourned the hearing so that the parties could deal, on affidavit, with the suggestion in Further and Better Particulars of the third ground in the Notice of Appeal that the Appellant had been prevented at the Tribunal hearing below from putting before the Tribunal copies of the Respondent's guidelines for (1) long term ill-health and (2) Frequent Absence Procedure.

As a result of those affidavits and the Chairman's comments, it is clear that (a) the Frequent Absence Procedure was before the Tribunal, contained in the Respondents' Bundle R1/ pages 153-8, but that the long term ill-health guidelines which have been put before us, were not. The Appellant does not depose in her affidavit to having tried to put those guidelines before the Tribunal. Ms Joffe, who appeared as Counsel below for the Respondent, confirms that neither side attempted to put in that document.

We are not surprised; that procedure only comes into play where the Council's doctor certifies an employee as permanently unfit to continue his or her normal duties. In this case, both Council doctors, Dr Siva and Dr Wood, certified her fit for work.

We therefore reject the third ground of appeal.

That leaves the first ground, the second, relating to sex discrimination having been abandoned.

Mr Okai submits that the Tribunal ought to have found that no reasonable employer would have relied on the opinion of Dr Siva and Dr Wood in dismissing the Appellant under the Frequent Absence Procedure. He submits that those doctors' reports were made without reference to the Appellant's medical history and records. We reject that submission, looking at the reports prepared by those doctors. We further accept Ms Joffe's submission that this point was not taken by the Appellant below.

Insofar as the first ground of appeal amounts to a perversity appeal, it falls far short of clearing that hurdle in our judgment. The Tribunal's conclusions express at paragraph 23 of their reasons, are in our view, manifestly sustainable on the evidence that was before them.

In these circumstances we have concluded that this appeal raises no arguable point of law fit to go to a full appeal hearing and it must be dismissed at this stage

Costs

We have before us an application by Ms Joffe on behalf of the Respondent for the costs incurred between the date of the last hearing before this Tribunal and today, including the Respondents' attendance today, this having been listed as an inter-partes preliminary hearing. We accept her submission. We think in the light of the affidavit, filed by the Appellant pursuant to our direction on the last occasion that the Appellant's conduct in pursuing her appeal to this hearing was unreasonable within rule 34.

However we are told that the Appellant is legally aided; she has been unemployed since losing her job with the Respondent and in those circumstances, we shall make an order for the Respondents' costs incurred since the last hearing, not to be enforced without leave of this Tribunal.

Finally, there is an application by Mr Okai for legal aid taxation of the Appellant's costs. We shall make that order.