United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CAVANAGH (of Counsel) Messrs Shepherd Oakes & Co Solicitors King Edward House 1 Jordangate Macclesfield Cheshire SK10 1ES
For the Respondents	MR R THOMAS (of Counsel) Addleshawe Booth & Co Solicitors 100 Barbirolli Square Manchester M2 3AB


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal Chairman sitting alone in Manchester on 14 May 1998, whereby he dismissed the Appellant's application to amend his Originating Application. He also dismissed the Appellant's applications for witness orders and for disclosure of a document called "Talking People Report".

The background to this appeal is that the Appellant was employed by the Respondent, Zeneca, and its predecessors, ICI, from 1975 until his dismissal on 14 November 1997, after which he filed an Originating Application alleging that he had been unfairly dismissed.

At the time of the Appellant's dismissal he held the position of Senior Business Manager. In the years since 1992 he had been seconded as General Manager first to Dublin to manage the Respondent's Irish subsidiary and then in 1995 to Switzerland to manage the Respondent's business there. He returned to the United Kingdom at the end of December 1996 to resume work at the Respondent's headquarters at Alderley Edge in Cheshire. In February 1997 he went off sick suffering from stress. There is no dispute that he was then claiming that his illness was due to the pressures of work upon him while under secondment and due to the lack of support provided by the Respondent. It is not disputed that other secondees had also complained as at some time in 1997 the Respondent instructed a firm of business consultants called "Talking People" to investigate and report upon these problems. Their report became known as "The Talking People Report".

Throughout the period from February 1997 to October 1997 the Appellant's absence was covered by sickness certificates from his general practitioner. The Respondent arranged for medical examinations by their own medical officer, Dr Heron, who saw the Appellant several times during his absence. The Respondent also arranged for the Appellant to be examined by an independent physician. In October 1997 the Respondent asked the Appellant to return to work, in reliance upon the opinion of Dr Heron that he was now fit.

The Appellant met with the Respondent's Human Resources Manager who subsequently wrote a letter, which we have not seen, but which the Appellant was later to allege in his Originating Application, informed him that he was expected to return to work immediately and proposed the same work objectives as before his illness. She, the Human Resources Manager, asked the Appellant to see his general practitioner and to obtain a medical certificate signing him as fit for work. The Appellant was also to allege that his general practitioner refused to do so.

He alleged that on 7 November 1997 his Manager, Mr Kay, instructed him to come in for a meeting to discuss a return to his normal duties. If he failed to attend he would be summarily dismissed for gross misconduct for his continued unauthorised absence. The Appellant alleges that he met Mr Kay on 11 November, but the problems were not resolved. In particular, Mr Kay was saying that Dr Heron had discussed the case with the Appellant's general practitioner and the Appellant was saying that he believed that that was not the case.

On 12 November the Appellant saw Dr Heron and discussed measures to assist in his return to work. The Appellant also alleged that on that day, 12 November, Mr Kay wrote again saying that on 11 November he had instructed the Appellant to return to work on the 12th and that his failure to do so was to be considered at a disciplinary meeting on 14 November.

The Appellant alleged that on 13 November he spoke to his general practitioner who had by that time discussed with Dr Heron the latter's proposals to assist the Appellant in his return to work. He alleged that these measures had not been offered by Mr Kay, who was insisting on a return to the full work objectives.

The Appellant did not attend the meeting on 14 November, but the Respondent was notified that he had a sickness certificate signed by his general practitioner. The Appellant was dismissed that day for gross misconduct, namely the unauthorised absence from work, having failed without adequate cause to attend work when told to do so, from 22 October.

That is a summary of the allegations in the Appellant's Originating Application.

The Respondent's Notice of Appearance explained that they took the view that the Appellant had evinced an intention not to return to work. They believed that he was not ill and they had medical advice to that effect. They therefore had no alternative but to treat his refusal to return as misconduct.

Shortly before the hearing the Appellant applied for leave to amend his Originating Application. He put in, as the proposed amendment, an eight page extension of his IT1, which was, in the view of this Appeal Tribunal, more akin to a witness statement than an amended application. In it he described in detail the events in Switzerland which he claims resulted in the breakdown of his health in February 1997. The Chairman refused to grant leave to amend the Originating Application. At paragraph 10 of the reasons he said:

"10. From reading the papers it would appear that all relevant issues have been properly pleaded in the unamended Originating Application and in the Notice of Appearance."

He then recited the arguments which Mr Shepherd had advanced on behalf of the Appellant, to the effect that it was necessary for the Tribunal at the hearing, to have a full account of the events which had caused the Appellant to suffer from stress. The Chairman rejected those arguments, saying that the Tribunal at the hearing would concentrate on the issues raised in the IT1 and it was not for them to determine whether the conduct of the Respondent between 1992 and 1997 might have contributed, in whole or in part, to the Appellant's stress-related illness. Accordingly, he rejected the amendment. He also rejected the related applications for witness orders. In addition, he rejected the application for disclosure of "The Talking People Report" as he treated that as being directly related to the issues raised in the proposed amendment. It therefore fell with the amendment.

In this appeal, Mr Cavanagh, for the Appellant, sought to argue that the Chairman's decision to refuse the amendment had been perverse. However, when it was put to him that it appeared to this Appeal Tribunal that the Chairman had been right to refuse the proposed amendment and had been right when he said that the case was adequately pleaded, Mr Cavanagh saw and accepted the force of those contentions But he explained to us that the Appellant's legal team had construed the Chairman's order as meaning that the Appellant was not permitted to give any evidence about any of the events which had, in his view, led to the onset of his illness.

We are not sure whether the Chairman did propose to limit the Appellant to that extent. Mr Thomas for the Respondent has submitted before us, that all the background to this case is irrelevant to the Tribunal's eventual decision and that the Tribunal will concentrate only on the medical issues at the time of dismissal. If the Chairman accepted that proposition in full (and we are not sure whether he did) and if he therefore intended to limit the Appellant to the extent which the Appellant fears that he did, then we think the Chairman misdirected himself.

Without in any way seeking to interfere with the Chairman's discretion as to the conduct of proceedings and to the ambit of the evidence to be admitted, we think that the Appellant must be allowed to explain briefly what his problems and grievances were, and to argue that the Respondent had failed to deal with these problems before expecting him to return to work. We think that these points are raised in the unamended pleadings. But further to that we have now the advantage of seeing documents, recently disclosed by the Respondent, which were not available to the Chairman on the application. From those documents it is clear that an issue under discussion shortly before the dismissal was the extent to which the Appellant's problems at work had or had not been addressed. It is plain to us that some understanding of those problems will be necessary before the Tribunal can reach a decision on the statutory question under Section 98 (4).

We do not wish to be thought to encourage the Appellant to launch into a long description of past events, such as he sought to put it as an amendment, but a concise account we think he must be entitled to give.

Having said that, it is our view that the Chairman was quite right to refuse the amendment as sought and that part of the appeal is dismissed.

The appeal against the refusal of witness orders has not been pursued, but the Appellant does seek to appeal against the refusal of the disclosure of "The Talking People Report". Mr Thomas for the Respondent conceded that the management summary of this report would have to be disclosed, as it was in the possession of Mr Kay at the time he reached the decision to dismiss and it relates, at least in part, to the problems of secondees such as the Appellant. The Appellant submits that he is entitled to see the original report, at least insofar as it deals with the Pharmaceutical Division. We agree. It was the original report which was in the Respondent's hands at the time of this dismissal and it is their knowledge of events and recommendations which is relevant to the Section 98 (4) question. It may be that the Respondent will also wish to put in the shortened version or management summary, as evidence of what was in Mr Kay's mind at the time of the dismissal, but that is a matter for them. It is our view that the whole report, insofar as it relates to the Pharmaceutical Division, is relevant to the issues in this case and insofar as the Chairman considered that it was not, we think that he erred in law.

Finally, the Appellant sought leave to make a further amendment of the Originating Application. We have no jurisdiction to deal with that matter. If there is to be an application it must be made to an Employment Tribunal Chairman. However, we express the view in passing that, having become familiar with the issues in this case, we do not consider that any amendment is necessary.