United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR J LYNN (IN PERSON)


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether and to what extent Dr Lynn's Notice of Appeal in this matter raises arguable points of law. The decision under Appeal is of an Employment Tribunal held at Stratford over a period of 5 days in October 1998, leading to a written decision and extended reason sent to the parties on 11th November 1998. The unanimous decision of the Tribunal was that the Applicant's complaint of unfair dismissal was dismissed. The Tribunal concluded that the Applicant was fairly dismissed and they identified the effective date of termination as being 1st September 1997. His complaint of wrongful deduction of wages was also dismissed as was his complaint of unlawful discrimination on the ground of sex. His claim for breach of contract in relation to membership of the Teachers Superannuation Scheme was also dismissed, and certain other complaints were dismissed on withdrawal.

The Tribunal, in their extended reasons, started off by identifying the relevant 4 Originating Applications which they were considering.

They then turned to what they identified as "the issues". In our judgment they are greatly to be commended for having set out the issues. Dr Lynn was critical of the way one of the issues was expressed, that is, indirect discrimination, but was prepared to accept, I think, in the course of argument, that the Tribunal was simply signalling for themselves in para 4 of their Judgment, the topics with which the decision would be dealing and to that extent, it is commendable that the Tribunal has taken that course.

The matter for which leave to proceed to a Full Hearing should be given relates to the question of access to the Teachers Pension Scheme. As we understand it, the position in fact is that at the relevant time those who were full time teachers were members of the Superannuation Scheme unless they opted out of it, whereas part-timers such as the Applicant were only members of the Scheme if they opted into it. Dr Lynn argues that Article 119 "requires that access to benefits be non-discriminatory" and in that context, draws attention to Case 28/93 Van den Akker -v- Stichting Shell Pensione Funds [1994] and he refers to an extract:

"Suffice it to say that since the obligation laid down in Article 119 to comply with the Principle of Equal Treatment in the matter of pay is mandatory, an occupational scheme cannot evade that obligation simply because a discriminatory situation has arisen from an election made expressly or by implication by employees to whom such an option has been granted."

The Employment Tribunal rejected his complaint under this head on the basis that there was a booklet which was provided to the Applicant in the course of his employment which made it clear that he was entitled to opt into the Pension Scheme as a part-timer. It was his case that other material documents which were provided to him at the time misled him into thinking that he was a member of the Pension Scheme. But what he is saying in argument is that whether or not he could have opted to become a member of the Pension Scheme and whether, in a sense, it could be described as his fault that he was not a member of the Pension Scheme, the way in which access to the Scheme depended upon full time or part-time employment was itself, unlawfully discriminatory. Without giving any indication as to the outcome of that argument, that point seems to us to be arguable.

The Employment Tribunal set out the history of the working relationship between the parties. Dr Lynn is a very well qualified teacher. He holds a PhD. He was recruited by the school to be a part-time teacher of science (I should describe it generally) and he started work in 1992 until he was dismissed as at September 1997. Throughout his employment there were periods of difficulty between himself and his supervisor and also in relation to matters concerning the Health and Safety at Work of the staff. In particular, there was a problem as to whether the school should be a smoking school or a non-smoking school. Dr Lynn suffers from a mild form of asthma and he made his position clear that the school ought to become no smoking.

The reason why he was dismissed ultimately, was because he had not attended to his duties from February 1996 until March 1997 and although there may be some dispute about it, as at the time when the decision to dismiss was taken, there was some evidence to suggest that Dr Lynn would be available to start teaching as at the October term of 1997, but obviously, no guarantee that his state of health would permit him to return to his duties.

The Appellant wishes to appeal on a large number of grounds and I hope that he will accept that this Judgment cannot deal with all of them in detail, but will deal with the main ones which were discussed in the course of his oral argument.

In the first place, he points out that the Tribunal did not deal in full with all the complaints of discrimination which he was making. He was required in the course of the proceedings to provide Further and Better Particulars of his complaints and in para 12 of that document he set out 6 items which he said constituted the areas in which he was treated less favourably. The last 2 items relate to information regarding Health and Safety and consultation regarding Health and Safety which he accepted, in the course of argument, could be regarded as one matter. He says that the Employment Tribunal may have dealt with the other 4 but did not deal with these last two matters and that therefore, there was an error of law on the part of the Employment Tribunal. There is some reference in the Tribunal's decision to the induction training which was given to members of staff. It was his case, which was rejected by the Tribunal, that a woman recruit was treated better than a part-time male recruit and he says that it would be wrong to say that the Health and Safety issues referred to in his Further and Better Particulars could be regarded as covered by the discussions which took place under the first two headings that is, "Induction to Training and Vocational Training" and "Provision of Equipment and Safety Clothing".

The case before the Employment Tribunal lasted, as I have said, for 5 days and Dr Lynn should understand that the Tribunal cannot be expected to deal with each and every point which is raised before it. The fact that something is not mentioned does not mean to say that it was not considered. It seems to us that the reason why the Employment Tribunal did not do any more than hint at the Health and Safety issues was because they were not prepared to accept that there was a credible case for suggesting that there was any discrimination in the way that Health and Safety matters were dealt with as between men and women.

Secondly, he says that the discovery process was unsatisfactory. He rightly points out that discovery is an important weapon in the Applicant's armoury when alleging unlawful discrimination. Since the Applicant has to prove that there has been discrimination, very often he or she will have to rely upon the documents which are disclosed in that process. There had been, apparently, refusals of discovery orders before the Tribunal commenced and there was no appeal in relation to any such refusal. He was told, when he protested at the commencement of the Hearing, that discovery would be dealt with if necessary as each and every item was dealt with at the Tribunal. He says that in effect, the discovery questions rather fell by the wayside. It seems to us not possible, at this stage, to consider interlocutory questions of this sort. Dr Lynn is not a stranger to the Employment Tribunal. He could and should have pursued an Application for Discovery if he thought it necessary and appealed any refusal to grant him relief if he thought it appropriate. In any event, we are not satisfied that there was anything which should have been disclosed which could have been of assistance to him.

Thirdly, he also complains that the Tribunal never properly dealt with how his grievances which he raised from time to time had been or had not been considered by his Employers. It seems to us that that complaint falls into the same category as the first complaint which he made that not all the allegations of less favourable treatment were expressly dealt with in the Tribunal's decision.

He next complains that his case of indirect sex discrimination had not properly been considered. He puts his case in this way. He says that most part-timers are women. He was a part-timer and was a man. The Employers required their part-timers to work on particular days allocated by the Employer rather than chosen by the Employee. He says that that requirement or condition to work on particular days was one which meant that the proportion of men who could comply with it was considerably smaller than the proportion of women who could comply with it. The basis for his assertion that that is so is, as I understand it, because women choose part-time work to fit in with their other responsibilities at home, whereas men who are on part-time work are filling in around other commitments that they will have. Accordingly, men will have less flexibility in relation to the dates when they do their part-time work than women.

Whilst this argument is of some interest, it seems to us to be wholly unsupported by any evidential matter to which the Tribunal should have regard. It is based purely on assertion and in such circumstances, in our view, was not worthy of being considered in detail by the Employment Tribunal.

Next, he complains about the conclusion on dismissal. Initially, he was under the false impression that his dismissal was effected on 1st September. In fact, his dismissal was effected on 11th April, although the effective date of termination of his employment under the Act was 1st September. In other words, the question at issue before the Employment Tribunal was what information was or should have been available to the Employers at the time when they took the decision to dismiss on 11th April.

He says that he could not fairly have been dismissed for incapability (for medical reasons) for carrying out his duties, without the Employment Tribunal setting out the information which was before the Tribunal and had been provided by a Dr Bampoe. Furthermore, it was unfair to dismiss him on those grounds without getting a medical report from his GP, although that had been suggested by Dr Bampoe. He says that he was in fact available for work in May 1997, before his contract had terminated and that rendered the dismissal unfair. He says that the Tribunal at sub-paragraph (k) erred in law. What the Tribunal said was this:

"Given that by his letter of 1 March 1997 the Applicant's best estimate of his likely capacity to return to work was in September 1997 and given that his absence had lasted from 12 February 1996, the Respondents were entitled to conclude without further medical examination that the Applicant's ability to attend Rokeby School to teach his allotted classes was, in effect, frustrating the purpose of the Contract of Employment."

Accordingly, they were, in the Tribunal's assessment, entitled to treat his long-term absence as a ground for his dismissal. This was within the range of reasonable responses by a reasonable Employer.

He says that the reference to "frustration" was inappropriate. Frustration was not an issue. It was not suggested that the Contract of Employment was frustrated as a result of his absences. Furthermore, the Tribunal in this paragraph appear to be applying their minds to the matters which had to be taken into account under Section 98(4) of the Act, whereas they do not deal with the reason for the dismissal until later in the decision in sub-paragraph (r) where the Tribunal said this:

"Ultimately, the Tribunal can see no argument other than the reasonable principal reason for the dismissal was capability due to ill health."

What he says (and we think there is some force in this, although it does not amount to an arguable point of law for the purposes of an Appeal) is that the Employment Tribunal should have first identified what the reason was for the dismissal before turning to the factors which affected the fairness of it. Accordingly, it was more appropriate that what was said in (r) should have been considered earlier on in the Tribunal decision. He points out that there appears to be a conflict between what was said in paragraph (i) and (j). In (i) it was said that the Tribunal unhesitatingly comes to the view that none of the alleged reasons (namely reasons other than his ill health) played any part in the decision to dismiss - Mrs Hasheem, the Chairman of the Panel, gave evidence of the fact that the Governors were solely concerned with the effect that the Applicant's prolonged absence was having on the education of children at Rokeby School - whereas in the subsequent paragraph, it appears that at the dismissal hearing, Mrs Hasheem referred to the conditions that the Applicant imposed upon his possible return to work as unreasonable. It follows, therefore, that at the dismissal hearing Mrs Hasheem was herself referring to matters which she regarded as unreasonable, yet the Tribunal have unhesitatingly concluded that none of those matters played any part in the decision to dismiss. Whilst we see the force of that, it does seem to us that Dr Lynn is taking an over-analytical approach to the judgment of the Employment Tribunal. In (i) they are making it quite clear that so far as the decision to dismiss was concerned that was taken solely on the basis of the perception of the effect of his illness on the teaching duties by the Applicant and the effect that failure to carry out those duties would or might have on the students of the school.

He submits that a warning should have been given and when it was pointed out to him that that was not entirely appropriate in a case where somebody was being dismissed for ill health, he said that the reason why he had referred to this was because there was a Mr Matthews from the Local Education Authority who was present at the disciplinary hearing which Dr Lynn did not attend, where the decision to dismiss was taken and had, in his evidence, told the Employment Tribunal that he had discussed with the Disciplinary Panel the need or potential need for a second warning on the misunderstanding that a first warning had already been given. Dr Lynn's complaint is that this part of the evidence was not referred to in the Tribunal's decision although it was relevant and should have been referred to, and should have been taken into account We have to repeat that it does not follow that because an Employment Tribunal does not refer to a particular point it has failed to take it into account.

Next, he says that the Tribunal did not, in its decision, refer either to the burden of proof being on the Employer to prove what the reason was for the dismissal, nor did they refer to the fact that Section 98(4) requires the Tribunal to have regard to whether the Employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the Employee. He stressed the word "sufficient" and said there was nothing in the Tribunal decision to indicate that the Employment Tribunal had had regard to that requirement. We are bound to say that we reject that ground of appeal. It seems to us very clear that Employment Tribunals are to be taken to know the provisions of Section 98 by heart, since that is a section with which they are faced almost every day of their lives. It is not a requirement of an Employment Tribunal decision that the relevant statute should be set out in full or reference made to it. It is to be assumed, unless there is something to indicate to the contrary, that they have correctly applied the statutory criteria in determining a case of unfair dismissal.

He also says that the Tribunal failed to deal with a contention that there was an information technology job available at the school in September and the Employers should have offered that to him or considered him for that post. It seems to us that this is not a good point. The case was concerned with the dismissal which was effected in April 1997 and the question was at that time: was it reasonable or unreasonable for the Employers to dismiss on the grounds of his lack of capability due to ill health?

Accordingly, although we have not done full justice to all the arguments which Dr Lynn has raised we are satisfied that bar the one point which has been identified, none of the other grounds amount to points of law but are really, in reality, attempts to rehearse or reargue the facts. Accordingly, none of the other parts of the Notice of Appeal will be allowed to proceed and the appeal will proceed only on the one point which we have identified earlier in this Judgment.