United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: The appellant, Mrs O'Brien commenced employment with the respondent, Eagle Star, as an audio typist in August 1981. She resigned from that employment on 19th January 1998 in circumstances which she alleged amounted to constructive dismissal. She then promptly presented a complaint of unfair dismissal to the Employment Tribunal.

The claim was heard by a tribunal sitting at London (South) (Chairman: Mrs F J Silverman) on 12th to 14th May 1998. By a decision with extended reasons promulgated on 5th June 1998 the tribunal dismissed her complaint. Against that decision she has appealed to the Employment Appeal Tribunal by Notice dated 24th June 1998. Her request for a review of the tribunal's decision was dismissed by the Chairman by a decision dated 23rd June.

The background to her resignation appears fully from the tribunal's reasons. In short, she began to exhibit bizarre behaviour in the office. She was convinced that fellow workers were spraying her with noxious substances which she could neither smell nor feel. She took to wearing protective headgear and facial coverings to ward off the effects of the spraying.

Eventually her employers suggested that she consult a doctor. She refused. They called in their own doctor, Dr Goodman. She would not see him. From his observations of her he advised that she be suspended on full pay until she was certified fit for work by her own doctor. She would not consult him, saying that she was not unwell. Nor would she authorise the release of her medical records to Dr Goodman.

She was suspended on full pay on 27th October 1997. She then instigated a grievance, complaining about her suspension. The suspension was upheld. Two further appeals under the grievance procedure were dismissed. Finally, on 19th January 1998 she wrote a letter of resignation, and in the same letter demanded her reinstatement. Eagle Star accepted her resignation. They offered to treat her letter as one month's notice of resignation, allowing her to be paid until February 1998. She declined and repaid salary after the 19th January.

The appellant has the firm belief that a conspiracy existed within Eagle Star's organisation to remove her from her employment. It dated back to an incident on 23rd November 1984 when a tree in her garden was uprooted in a gale and fell onto a railway line. British Rail claimed compensation for the consequent derailment of one of its trains, happily without injury to those aboard. The claim was settled by Eagle Star, with whom she had insurance cover. The settlement figure was just over £600. She wishes to have British Rail, as an organ of the state, joined as a party to the proceedings so that she may take her case to the European Court of Justice.

Dr Goodman attended the tribunal hearing and observed the appellant. He was called to give evidence. Whilst he had not had the opportunity to examine the appellant, from his observations of her he ventured the opinion that she was suffering from mild schizophrenia, which might explain her delusions, that is, the alleged spraying, and hearing voices on doctored audio tapes.

That is the flavour of the case. We return to our task which is to determine whether the appeal raises any arguable point or points of law to go to a full appeal hearing. The submissions addressed to us by Mrs O'Brien are as follows:

(1) It is absolutely central to her case that all her troubles with Eagle Star, culminating in her alleged constructive dismissal in January 1998, stem from her insurance claim arising out of the incident on 23rd November 1984. In these circumstances she contends that the tribunal fell into error in not ordering Eagle Star to disclose their claim file in respect of that incident. In fact Eagle Star say that the file has been destroyed, the incident having been dealt with more than six years ago. Whether or not that is so, it seems to us the tribunal was perfectly entitled to rule that the claim file was not relevant to the allegation of constructive dismissal in 1998. The tribunal found, on the evidence, that the appellant's connection between that claim and her leaving in 1998 was too far fetched to be credible. They rejected her conspiracy theory as wholly unsupported by evidence. There was no error of law in the tribunal's exercise of discretion in relation to the claim file.

(2) She points to the fact that in their reasons the tribunal refer to the tree incident as having occurred in 1985, not 1984. We do not regard that error as material. If it assists Mrs O'Brien we declare that the tree incident referred to in the tribunal's reasons occurred on 23rd November 1984.

(3) She submits that because British Rail was, in 1984, an emanation of the state, it should be joined as second respondent. She asks us to refer the case to the European Court of Justice under Article 177 of the Treaty of Rome. We can see no basis for doing so. Apparently she now wishes to add a claim for equal pay under Article 119, not argued below. We shall not permit that point to be taken now.

(4) She argues that the tribunal and, we think, this Appeal Tribunal is biased against her due to the state's involvement (through British Rail) in the 1984 tree incident. Since both tribunals are part of the state apparatus she cannot receive a fair and impartial hearing. We have endeavoured to explain that the tribunals are independent of the state, which she believes is waiting to bring further, unspecified, court proceedings against her as a result of her insurance claim in 1984. We suspect that we have not succeeded in allaying her fears.

She also makes complaint that at the tribunal hearing one of the panel members made a sarcastic remark about spraying by a fellow-employee called to give evidence. If such a remark was made it is regrettable, but not such as to cause us to conclude that the case should be reheard.

(5) She makes a point that as a matter of public policy, where insurance companies provide favourable insurance rates to staff, the policy should be placed with a different insurance company. That does not raise any error of law on the part of the tribunal in this case.

(6) She wishes to reargue her factual case that members of staff, in order to keep their jobs, conspired together and with Eagle Star to ostracise and harass her, at the behest of the state, in order to force her out of her employment. That case was rejected by the tribunal on the facts. We cannot retry that factual issue.

Having considered the arguments we conclude that the appeal raises no arguable point of law. Far from breaching the contract of employment the tribunal found, and were entitled to find in our judgment, that in the difficult circumstances with which they were faced Eagle Star took a responsible and caring attitude to this long-standing employee. They were perfectly entitled to suspend her, on full pay, until she was cleared for work by a doctor and to reject her grievance over that suspension. She adamantly and we think unreasonably refused to seek medical attention. Finally she resigned in circumstances where it could not be said that Eagle Star was in breach of contract, let alone fundamental breach, entitling her to leave and claim constructive dismissal.

It follows:

(1) that we dismiss her application to join British Rail as second respondent;

(2) we dismiss her application to add a claim of sex discrimination;

(3) we shall not refer this case to the European Court of Justice; and

(4) the appeal is dismissed.

Finally, Mrs O'Brien has applied for leave to appeal to the Court of Appeal in the event that this appeal is dismissed. We refuse that application on the ground that such further appeal has no real prospect of success.