United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRISTOPHER ORCHARD MESSRS GALES SOLICITORS 512 WIMBOURNE ROAD WINTON BOURNEMOUTH DORSET BH9 2ET


 


JUDGE SMITH:-

1. This is an application by Mrs Marrufo, who was the Applicant before the Employment Tribunal, against the decision of an Employment Tribunal held at Southampton on 1^st July 1999, of which Extended Reasons were sent to the parties on 20^th July 1999, whereby the Employment Tribunal held that the Applicant, Mrs Marrufo had not been the subject of victimisation by the Respondents Barclays Bank Plc and Miss J Isgar, a Human Resources Manager employed by the Bank, contrary to section 4 (1) (a) of this Sex Discrimination Act 1975, so that her application was dismissed by the full Employment Tribunal.
2. As appears from the skeleton argument, and from the oral submissions that have been made to us today by Mr Christopher Orchard, the solicitor appearing on behalf of the Applicant, the ground of appeal, putting it compendiously, which is sought to be argued at a full hearing, is that the decision by the Employment Tribunal is a perverse decision. That is clear from the submissions we have heard from Mr Orchard and also, of course, from the skeleton argument particularly at paragraphs 18 and 20. In support of that contention various specific matters are relied upon as set out in paragraph 20 of the skeleton argument and as amplified by Mr Orchard in his submissions to us today. We will have to consider those contentions later in this judgment. We have reminded ourselves that if a ground of appeal is arguable, leave should be given for a full hearing of the appeal. We have also reminded ourselves that many questions arising from conflicts of evidence before employment tribunals are questions of fact upon which the employment tribunal, sitting as an industrial jury, have to reach findings and, have to weigh up the evidence and reach findings of fact in relation thereto, and it is only if the employment tribunal have reached a decision which is plainly and demonstrably wholly wrong, that it can be ever be argued that such a decision is a perverse decision, thus the fact that an appellant would disagree profoundly with a decision reached by an employment tribunal and would very much like to have the matter reheard, cannot amount to an arguable ground of appeal based on perversity, so we also had to bear in mind that matter very carefully.
3. Before we come on to the particular matters which Mr Orchard developed and which are contained in the skeleton argument, we should summarise briefly the circumstances giving rise to the Employment Tribunal's decision. Of course, for the full effect of their decision, reference should be made to the way in which they put the matter in the decision itself.
4. Putting the matter shortly, it appears from their decision that Mrs Marrufo has been employed by the Bank since August 1987 or thereabouts as a Finance Clerk. At the time of the hearing before the Employment Tribunal she remained absent from work, first of all having been off sick from some date prior to December 1997 and latterly as suspended on full pay pursuant to Miss Isgar's letter of 15^th May 1998. It was the Bank's case and the Respondent's case before the Employment Tribunal that, on medical advice they had received, the Applicant was not fit to return to work in consequence of advice they had received from their medical adviser, Dr King, as contained in his report to the bank dated 18^th March 1998 whereas it was the Applicant's case before the Employment Tribunal that the Respondents namely the Bank and Miss Isgar had conspired to stop her from returning to work as a method of victimising her by way of retaliation by the Respondents in consequence of proceedings she had brought against the Respondents and a Mr Hayward and a Mrs Ash, another Human Resources Manager, alleging sex discrimination including victimisation and harassment, which proceeding she had brought on the 25^th November 1997, hereinafter called the earlier proceedings.
5. Thus it was that the Applicant had brought the present proceedings the subject of the application for leave to proceed to an appeal by her complaint presented on 25^th June 1999. As appears from the Employment Tribunal's decision under appeal the earlier proceedings had been heard between the 3^rd April and 14^th July 1998 and had resulted in the Applicant's claims being dismissed. The Employment Tribunal pointed out in paragraph 6 of the present decision, correctly in our judgment, that they were bound by the findings of fact made by the employment tribunal in the earlier proceedings as we call them. Whilst it is quite unnecessary to refer in detail to those findings in the earlier case, it must be said that the Applicant's case in the earlier proceedings was that a succession of male co-employees had made sexual advances to her at work and that, when she had rejected them, they had taken it personally and accused her of chasing them so to speak, and it was that case which was dismissed. In those proceedings she had alleged that there had been a conspiracy within the bank to persecute her, and unfairly bring disciplinary proceedings against her. It must be said, as is clear from the findings of the tribunal in the earlier proceedings, that after what was obviously a very long hearing, her case was totally rejected. See in particular paragraphs 60, 61, 63, 64, 65, 68, 69 and 76 of that tribunal's decision.
6. It is only appropriate, and necessary, to refer to paragraph 65 as being at all germane to the decision arrived at by the Employment Tribunal which is under appeal. Paragraph 65 reads as follows:-

"65. The Tribunal was struck in this case by the efforts made by the Respondents to protect the Applicant's welfare and to take advantage of the counselling and medical attention which they deemed would be beneficial to her. Both Mr Barklem and the Respondent's witnesses were generally careful not to attribute personal blame or intent to the Applicant in respect of the statements and assertions on her part with which they had to differ.

Apart from the note from her doctor stating that the Applicant was suffering from reactive depression and anxiety, the Tribunal has been presented with no medical evidence relating to the Applicant and is, therefore, in no position to form a view as to the Applicant's mental state or to come to any conclusion as to whether or not the Applicant is culpable in respect of the aspects of her evidence upon which it has been necessary for the Tribunal to comment adversely for the purpose of explaining the decisions it has reached."

7. It was against that background that the Employment Tribunal had to deal with the issues raised before them at the hearing of the 1^st July 1999. In our judgment the Employment Tribunal correctly identified the issue before them in paragraph 5 of their reasons as turning upon whether the obtaining of the medical reports had been in bad faith and in pursuance of a conspiracy to dispense with her services, as the applicant maintained, and because she had brought the earlier proceedings.
8. In our judgment the Employment Tribunal correctly identified the issue before them in paragraph 5. They then proceeded to analyse and make findings of fact in relation to the evidence that they had heard in paragraph 7-13 of their decision, which are self-explanatory. In paragraph 11 of the decision they rejected entirely the aspersions which the Applicant sought to cast on Dr King and they expressed their conclusions at paragraphs 14 and 15 of their decision:-

"14. In the whole course of their conduct with regard to the Applicant's health the Tribunal cannot fault the Bank, who have followed normal good practice and procedure throughout.

15. There is no evidence of victimisation, no evidence of a conspiracy and no evidence that the Respondent was seeking to stop the Applicant bringing her original claim for sex discrimination or to dispense with her as an employee. In all of these circumstances, whilst appreciating that the Applicant still disagrees strongly with the finding of the first Tribunal, the present application is dismissed."

9. It is against that resumé of the Employment Tribunal's decision that we turn to consider the grounds of appeal put forward in paragraph 20 of the skeleton argument and the submissions made to us by Mr Orchard on behalf of the Applicant today but we must first deal with a matter that is in fact contained in paragraph 20(e) of the skeleton argument. There it is submitted in effect that the Tribunal erred in some way or another in proceeding to hear the complaint in circumstances where there was not before the Tribunal the final independent psychiatric report from Dr Bailey who had carried out an examination of the Applicant but whose report was not at that stage available.
10. In our judgment it is clear from the documentation that has been put in front of us today and from everything that Mr Orchard said about the matter that what had happened here was that there was an application by letter from Messrs Trevanions, Solicitors, who were then acting for the Applicant by their letter dated 25^th June for an adjournment on the grounds set out in that letter. In our judgment it is clear that that must have been dealt with as an interlocutory matter prior to the hearing of the complaint itself which was not adjourned and which was heard on the 1^st July. We have not had in front of us the ruling that was given by the Tribunal on that occasion but what is clear is that there has been no appeal from the decision which must have been made by the Tribunal to reject the application for an adjournment. In those circumstances we simply cannot now enter into that matter because what we are concerned with is an application for leave to appeal against the decision that was made by the full Tribunal on 1^st July 1999.
11. We should say, however, in regard to that application as set out in Trevanions' letter that in our judgement it is clear that what the Employment Tribunal had to decide at the Tribunal hearing of 1^st July was not the very difficult issue as to whether or not the applicant was fit for work from the medical point of view but rather the issue was whether the Bank and Miss Isgar had been victimising the Applicant on the grounds of her sex and because she had brought the earlier proceedings against the Bank which was a quite different question in our judgement. The Employment Tribunal was not called upon to decide one way or the other the ultimate medical issue, but simply to consider whether the Bank had proceeded in good faith in relation to the evidence they were obtaining as to the Applicant's state of health. So in our judgment it is clear that there was no error of law in the discretion exercised by the Employment Tribunal to proceed with the hearing without the Bank's psychiatric report and that was plainly a proper exercise of their discretion and one with which we could not interfere even if it were the subject matter of a proper appeal in front of us. We must reject that ground of appeal.
12. We turn to consider the other matters put forward. Mr Orchard was particularly critical of the approach of the Tribunal to the their assessment of Dr King and the role played in this matter. It was submitted to us in effect that the conclusion of the Employment Tribunal which they stated at paragraph 10 and particularly paragraph 11 was a perverse conclusion. At paragraph 11 of the decision the Employment Tribunal noted that the Applicant had cast aspersions upon the professional integrity of Dr King and they weighed up those matters and concluded that there was not a shred of evidence that had been produced in support of that attack on Dr King and rejected it in its entirety. A complaint is made along the lines set out in paragraph 20(d) of the skeleton argument that the Employment Tribunal is alleged to have ignored certain facts and reached a perverse conclusion. In our judgment, this submission when closely examined simply does not hold water at all with great respect to Mr Orchard. It is evident from the Tribunal's decision that the Employment Tribunal did take into account that he was the Bank's medical adviser and that appears at paragraph 10. They did take into account that he was not a psychiatrist. That also appears at paragraph 10 of their decision. They did take into account that what he had said, in what he believed was in confidence to another doctor, Dr Brigg's the Applicants general practitioner, namely that the Applicant may require "sectioning". That again is dealt with by the Employment Tribunal in paragraph 10 where the Employment Tribunal concludes that it is unfortunate that Dr Briggs passed that observation on to the patient, the applicant.
13. With regard to the other matters raised in this sub-paragraph, in our judgment the evidence before the Employment Tribunal was not that Dr King had dismissed the reports of Dr Briggs and Dr Milad but rather that he disagreed with their findings and preferred his own findings. That was very much a matter for the Employment Tribunal to decide and weigh up and to evaluate their impression of Dr King and the part in the matter he played and in our judgment that cannot possibly support an argument that the Employment Tribunal had reached a perverse finding. The Employment Tribunal deals properly with what they described as the quandary the Bank was placed in resulting from the conflicting reports and they were fully entitled to reach the conclusion they did about Dr King.
14. With regard to the other points taken in the skeleton argument, with regard to the matter raised in paragraph 20(a), we simply say that in our judgment the Employment Tribunal gave proper consideration to Mr Dugmore's letter and reached conclusions with regard to it which they were entitled to reach on the evidence before them. They correctly characterised the letter as reflecting the view of the department within the Bank as to what had taken place between the Applicant and various members of staff and the Employment Tribunal were entitled to take into account that the details of the allegations contained in Mr Dugmore's letter had been canvassed in the earlier proceedings where they were found to be substantially proved.
15. In our judgment whether or not the family involved in the second case referred to by Mr Dugmore had taken out an injunction was a matter which the Employment Tribunal were entitled not to regard as other than a peripheral matter which did not require a ruling from the Employment Tribunal. From their findings in relation to that letter as viewed overall, it is plain that the Employment Tribunal found that Mr Dugmore had acted properly in writing to Dr King without showing the letter to the Applicant. The Employment Tribunal found that his letter was in no way careless or malicious and that was a finding which in our judgment they were entitled to make and which must be taken to encompass a finding by necessary inference that they did not criticise Mr Dugmore for not showing the letter to the Applicant and we can see nothing in that ground of appeal.
16. With regard to paragraph 20(b) of this skeleton argument to the effect that the second Tribunal ignored the evidence that Dr King had received a full report from the Appellant's GP in terms of the enclosed letter of 14^th January 1998 and that Dr Briggs, the Appellant's GP, had much greater and longer knowledge of the Appellant than Dr King, we can deal with that matter as follows. In our judgement it is factually incorrect to argue that the Employment Tribunal ignored the evidence that Dr King received a report from Dr Briggs in terms of the letter of 14^th January 1998. At paragraph 7 of their decision the Employment Tribunal found as a fact:

"Dr King did this, and upon receiving a report from Dr Briggs, the General Practitioner, Dr King saw the Applicant and sent a report to Mr Dugmore on 18 March."

Thus it is apparent that in reaching the conclusions they did in paragraph 11 of the reasons relating to Dr King and his part in the matter, the Employment Tribunal plainly had in mind that he had received a report from Dr Briggs, the Applicant's GP. It remained in our judgment, a legitimate finding by the Employment Tribunal, that Dr King was entitled to exercise his own judgment in reaching his own conclusions about the matter in his own medical report.

17. Finally, there is the argument put forward at paragraph 20(c) to the effect that the Employment Tribunal did not pay sufficient regard in some allegedly perverse manner to the report of Dr Milad, the Applicant's psychiatrist, and ignored his findings. In our judgment, that again simply will not hold water on a proper and fair examination of the Employment Tribunal's findings. The Employment Tribunal fully considered, as we have already said, the letter of the 16^th December 1997 which Mr Dugmore had sent to Dr King which was the entire reason for Dr King looking into the matter in the first place, as the medical adviser to the bank. The Employment Tribunal plainly took this into account, but also took into account, as they were entitled and indeed bound to do, that the Bank's version of events had been substantially proved in the earlier proceedings. In our judgment it was against that background that the Employment Tribunal came to consider the report of Dr Milad and, in that context, the Employment Tribunal made detailed findings as to Dr Milad's report in paragraphs 12 and 13 of the decision noting particularly the carefully careful caveat which the psychiatrist had entered to the effect that everything in his report was based upon what the Applicant had told him and the history that she had given him. In our judgment the Employment Tribunal were fully entitled to reach the findings they did in relation to Dr Milad's report based on the evidence before them.
18. So for all those reasons, we have concluded here that the real complaint that is being made against the Employment Tribunal's decision is that they are accused of not weighing the evidence correctly and reaching conclusions with which the applicant disagrees. However, it was entirely for the Employment Tribunal to make their own assessment and evaluation of the evidence and we find that they proceeded properly in so doing and nothing that has been said this morning has in any way persuaded us that an arguable ground exists for saying that their decision was in any way perverse and accordingly, for those reasons, we must dismiss this application.