United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GERARD CLARKE (of Counsel) Messrs Shakespeares Solicitors 10 Bennetts Hill Birmingham B2 5RS


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing in an appeal from a decision of the Employment Tribunal sitting at London Central. After some four days of taking evidence Extended Reasons were promulgated on 16 February 2001. By those reasons the Tribunal rejected the Appellant's complaints of unfair dismissal and wrongful dismissal, both on the basis that they held that he had resigned and was not dismissed and rejected his claim of discrimination on the grounds of disability. An earlier complaint of unlawful deductions from wages had been withdrawn. The Tribunal awarded the Respondents a sum of £14,112 upon their counterclaim.
2. The essential facts were that the Appellant is and was employed by the Respondents as a Consultant Forensic Psychiatrist. To cut a long story short; between 15 and 18 September 1999 he collapsed some three times at work. It has emerged since, if it did not emerge before, that he suffers from a condition which is innominate but which has as its features tachycardia, transient ischaemic attacks and the like, which an employment Tribunal had earlier upon a Preliminary Hearing resolved constituted a disability within the meaning of the Disability Discrimination Act 1995 even although a label could not be put on it. The Appellant was then absent from work following the last of those attacks, ill at home, until 18 November 1999 when he resigned. He complained essentially of victimisation by the Hospital Director in a number of respects in respect of which the Tribunal quote his letter of resignation.
3. In this hearing, Mr Clarke, who appears for Dr Harlow, has raised two matters upon which he wishes to seek our permission to appeal to a hearing at which the Respondents would be represented. They are: the finding in respect of disability discrimination and secondly, the finding to which the Tribunal came in respect of dismissal.
4. We propose to grant him permission in respect of the latter but not the former. Because we are rejecting the former claims as having no arguable basis, we are required to give reasons for that. It may also be helpful for the Tribunal which ultimately comes to hear this case to give, shortly, the reasons why we have been persuaded by Mr Clarke in the course of his submissions that there is an arguable case in respect of the dismissal.
5. So far as the claim in respect of discrimination on the grounds of disability is concerned, Mr Clarke accepted that the critical issue which the Tribunal had to resolve was, first, whether or not the Respondent knew or ought to have known of the condition which constituted the disability. The Tribunal found in this respect as follows:

"The Applicant's disability is highly unusual and the symptoms are only intermittent. The Applicant, though being a Medical Practitioner himself, never told his employers that he had a material disability including never raising it at any of the meetings which are minuted in the bundle. The Respondent did not receive any information or communication from any of the doctors that the Applicant consulted or otherwise indicating that he had a material disability. Furthermore, he never complained that he was placed at any disadvantage let alone any substantial disadvantage in any material respect on account of such a disability. He never sought any material adjustment with reference to any disability. Even in the summer of 1999 in lengthy meetings with Dr Taylor and the Hospital Director, he did not reveal or claim any material disability or seek any adjustment with regard to it. Indeed, he sought actively to conceal his problems from his employer. Prior to his leaving he had only two or three days sickness absence, none disability related. His symptoms, even when present, were not plainly evidence of a disability within the Act."

The Tribunal then went on to record that whilst witnesses called for the Appellant had seen the symptoms, those called for the Respondents mainly medical staff claimed that they have not seen them.

6. The findings there are attacked on these bases. First it is said that by referring to the Appellant being a medical practitioner the Tribunal were imposing upon him a higher duty in terms of informing his employer about his condition than they would upon someone who was not a doctor. We do not think that this paragraph is capable of sensibly being read in that light. Once one reads the paragraph as a whole in the context of the decision as a whole, what is being said here is merely to emphasise the fact that there was no information coming to the Respondent at any material time from the Appellant.
7. Secondly, it is said that the Tribunal brushed aside without explanation or reference documents in which Dr Harlow and others raised his medical condition. We have had five such extracts drawn specifically to our attention. The first of those was from minutes of a doctor's meeting held on 30 November 1998 in which concern was raised that Dr Harlow might suffer from exhaustion and have to be on sick leave because of his excessive work load. That does not seem to us, taken in isolation, to be any information that he was in fact suffering, let alone suffering from that which was the material disability.
8. Then, in a hand written file note of December 1998, as part of a lengthy note, there is this reference:

"In view of his health problems …."

and it goes on to say that the Hospital Director accepted his resignation as Acting Medical Director. There is no detail there given as to what those health problems might have been, though plainly it was fertile ground for cross examination. Indeed, Mr Clarke indicates to us that there was cross-examination about many of the documents before the Employment Tribunal.

9. In April 1999 there was reference to Dr Harlow having medical investigations. There was a memorandum upon which particular weight was placed which recalled that in June 1999 he had taken delivery of a cardiocall cardiac monitor. Nothing however is said as to the reasons why he taken such a delivery which was left to be implicit rather than explicit.
10. Finally, there was a letter of 8 October 1999 which was from the Health Services of the Respondent to the Director referring to an appointment which had been suggested for Dr Harlow. The date of this however is important because it is accepted in argument before us that the employer would have to have the relevant knowledge before 18 September when the Appellant last worked for the Respondent.
11. We have looked at the references and asked whether they amount to an attempt by the Appellant, through Mr Clarke, to re-argue the findings of fact, in which case they give rise to no proper basis of appeal, or whether they necessarily falsify the findings to which the Employment Tribunal came, such that there was no proper evidential basis for their conclusions, in which case it would amount to an arguable point of law. We have concluded that it is the former and not the latter. Accordingly, we see no force in the matters which have been argued, albeit persuasively, in respect of the appeal so far as it relates to the claim of disability discrimination.

Dismissal

12. We propose to give permission for the matter to proceed so far as dismissal is concerned. We think it arguable that this Employment Tribunal gave no proper or indeed any analysis of the facts which gave rise to their conclusion. We do not see in the critical paragraph at the top of page 10 for instance what evidence from the Applicant was contrasted with what evidence from the Hospital Director with what specific result. We think it arguable that that should have been set out. Some of the passages within that paragraph may be capable of more than one interpretation. We think that the interpretation to be placed upon them is arguable. We find it difficult to follow quite what the Tribunal had in mind in the last three sentences which presuppose, contrary to their earlier finding, a breach, and go on to examine whether, if that had been the case, Dr Harlow would have left his employment in response to it.
13. Reference is made to his waiving the breach by delaying too long. Yet his letter, to which the Tribunal had earlier referred, mentioned at least two matters which were arguably very contemporaneous. The first was the failure to progress a grievance procedure. The second was interference with post arriving whilst Dr Harlow was absent ill. There is arguably no sufficient indication as to what, if any, breach was waived. Or indeed as to what, if any, significance might have been attached to that particular breach so as to render it repudiatory either taken on its own or in connection with others, or the opposite. Indeed, we note that the Tribunal do not say why it was that Dr Harlow left employment.
14. It is not for us to resolve any of these questions. Merely to say, that it seems to us, they may properly be explored at a hearing at which the Respondents should be represented.

We think, Mr Clarke, that at the moment the directions we propose to give, are that the matter will take half a day to argue. That it should be Category C. That skeleton arguments together with any case law to be relied upon, though I imagine it may not be very much, should be made available no less than fourteen days prior to the hearing. Now, you have made reference, I think, in your skeleton argument to the possibility of notes of evidence being made available.

I don't think I mentioned it in my skeleton Sir, but you are right to say I do ask that you direct Chairman's notes in this case. It is a case where the attack hinges, and indeed this Tribunal's decision at this preliminary stage has hinged upon the very paucity of the Tribunal's description of its reasoning process and the approach by which it arrives at its conclusions and we say it is a case where Chairman's notes may be of great assistance, not only to the parties, but to the Tribunal which ultimately has to determine this appeal. When this Tribunal is faced with what are fairly bald findings by the Employment Tribunal that they accepted one side's evidence but not the other and the Tribunal cannot see upon what basis that evidence was accepted in a case we say where the Chairman's notes are likely to be material and assist the Tribunal in its ultimate determination. That is the only additional direction I would seek. I would agree that with skeleton arguments there is not going to be a lot of case law here. It really is a half a day case.

It is not a case as it were, that you will be arguing that there was something in the notes which is directly contrary to a finding of fact which the Tribunal has made on this issue?

Only perhaps to show Sir that the evidence, for example, in respect of issues of waiver and delay, to be able to point to the recording of the evidence as to when various issues arose, the timing of various alleged breaches, and the complaints made in respect of them. That would be of assistance to my presentation of the case. You are right to say that its not one where, its not so much a case of saying 'that finding is definitely wrong and we can show you because here are the passages and all the evidence' it is not that sort of situation, that obviously would be more the case if we were looking perhaps at the disability side of the case, but that's not going anywhere.

Yes, thank you. Mr Clarke, we have determined that we do not propose to order the Chairman's notes, we think that the better points which you may have to make will be made on the base of the decision.