United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


JUDGE PETER CLARK

1. This is an appeal by Mr Stronach, the Applicant before the Birmingham Employment Tribunal, (Chairman Mr J A Caborn) sitting over 7 days in May 2000, against that Tribunal's decision with extended reasons promulgated on 16 June 2000, dismissing his combined complaints brought against his former employer, the Respondent, Walsall Metropolitan Borough Council.

Background

2. The Appellant is a Burgher, born in Sri Lanka in 1951. He moved to the United Kingdom aged 8 years.
3. On 6 June 1994 he commenced employed with the Respondent as a manager of a team of social workers, first in Bloxwich and later in Mossley. During his employment he held office as union shop steward.
4. He was off sick between 10 December 1997 and 12 January 1998, and again from 26 January 1998 until 2 February 1998. He was complaining of stress.
5. He was again off sick on 4 February 1998, and following a welfare visit on 18 February he was seen by the Council's Medical Adviser, Dr Chalkley who certified him unfit for work.
6. Following a further welfare visit at home on 7 April 1998 the Appellant applied for medical redeployment on 17 April. During April his manager, Mr Pitcher wrote to the Appellant advising him that his entitlement to full sick pay would end on 29 April, whereafter he would go on to half pay.
7. At the end of April the Appellant was signed off fit for work by his General Practitioner. However, he was asked to remain at home until he could be seen by Dr Chalkley. On 23 July she reported that he was unfit for work.
8. In July he was to be interviewed for an alternative position of Residential Child Care Coordinator. However he withdrew from the interview, without justification so the Tribunal found.
9. On 20 August 1998 he was given notice of termination of employment to take effect on 20 October. Between 14 September and 12 October 1998 he was admitted to hospital with depression.
10. Meanwhile the possibility of his retiring on ill-health grounds was raised and he stated he wished to be so retired by letter dated 9 August. In these circumstances, pending medical advice, the decision to dismiss him was rescinded.
11. On 23 November 1998 the Appellant learned that Dr Chalkley was not prepared to support his ill-health retirement. On the same day he presented an Originating Application to the Employment Tribunal (the first complaint). His complaints were listed as Racial Discrimination, Disability Discrimination, Health & Safety at Work, Employment Rights/Trade Union Activist.
12. His entitlement to any sick pay was due to end on 14 March 1999. He was seen at home on 8 April by, among others, Mr Pitcher and informed that his employment was to terminate on 12 April.
13. Against that decision he appealed unsuccessfully, that appeal being dismissed by a panel of Councillors following a hearing held on 7 - 8 September 1999.
14. Secondly he appealed to the West Midlands Pension Fund against the decision not to retire him on ill-health grounds. That appeal succeeded with the result that he was permitted to retire on ill-health grounds with his pension entitlement, including enhancement of qualifying years, back-dated to the date his employment terminated, 12 April 1999.
15. On 9 July 1999 he presented a further Originating Application to the Tribunal (the second complaint). This time he listed his complaints as racial discrimination, disability discrimination and unfair dismissal.

The Employment Tribunal Decision

16. The first complaint

The Tribunal found that these complaints were out of time and declined to extend time. However, having heard the evidence they found that had they been in time they would have failed on their merits. There was no difference in treatment for the purposes of his complaints of racial discrimination or victimisation. Nor was he harassed or victimised as a result of his trade union activities. He simply lost on the facts as found.

17. The second complaint

The Tribunal found that the reason for his dismissal related to his medical condition. It had nothing to do with his race or trade union activities. It was a fair dismissal by reason of capability.

18. As to the claim of disability discrimination, it was common ground that he was disabled for the purposes of the Disability Discrimination Act 1995, but the Tribunal found that there were no further adjustments which could be made. The Tribunal upheld the Respondent's plea of justification, set out at paragraphs 23 - 26 of their reasons. There was no unlawful discrimination on grounds of his disability.

The Appeal

19. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law which ought to proceed to a full inter partes hearing. We have before us detailed grounds of appeal and a skeleton argument prepared by Mr Stronach, which he has supplemented by oral submissions before us. He tells us that he is still undergoing treatment under the care of a Consultant Psychiatrist and remains unfit for work. Nevertheless we are satisfied that he has had sufficient opportunity to state his case on appeal, both orally and in writing.
20. We begin with this general observation, which Mr Stronach understood during the course of his submissions, that our power to interfere with Employment Tribunal decisions are limited to correcting errors of law. We cannot re-try the facts. On a number of occasions Mr Stronach sought to challenge what are clearly unimpeachable findings of fact in circumstances where the Tribunal simply preferred evidence led by the Respondent to that given by the Appellant; that is not a permissible ground for appeal.
21. It is convenient to deal with the points taken in the appeal under the following headings.

(1) Limitation

Mr Stronach points out that 2 separate preliminary hearings were held before the substantive hearing took place. He submits that at neither of the earlier hearings was the question of limitation raised. The point only arose during Counsel for the Respondent's closing submissions on the final day of the substantive hearing. He believes that the Chairman dismissed the Respondent's submission without calling on him. He was surprised when the Tribunal, in their written decision, dismissed the first complaint as being out of time.

We ourselves would be surprised, if, having indicated orally that the time point taken by the Respondent failed, the Tribunal then upheld it in their decision. If no such indication was given during submissions then it was open to the Appellant to deal with the matter in his closing address, which followed that of Counsel for the Respondent. It is a point going to jurisdiction and required consideration by the Tribunal.

However, even if there was procedural unfairness as he alleges, the Appellant's difficulty is that the Tribunal, having heard the evidence in relation to the first complaint, then made substantive findings adverse to him. Unless those findings can be impugned the procedural complaint is rendered academic.

(2) Disability Discrimination

The Tribunal accepted the Respondent's case that at the date of dismissal the Respondent had made out the defence of justification on the basis that no further adjustments could then be made under Section 6 of the 1995 Act in order to assist the Appellant.

His complaint on appeal is that no Section 6 adjustments were made before the dismissal and particularly between November 1998 and April 1999.

We have looked at the Tribunal's findings and reasons as a whole. It is clear that welfare visits were made to the Appellant; medical advice was taken; he was placed on the medical redeployment scheme, he applied for an alternative post in May 1998, but then declined to be interviewed for the post.

Bearing in mind that he was effectively unfit for work from late 1997, with a few gaps, it is difficult to see what further adjustments could then have been made. Hence any claim under Section 5(2) of the 1995 Act was bound to fail.

(3) Comparators

There are clear findings of fact, at paragraph 57 and 78 of the reasons, contrary to the case advanced by the Appellant below, that there was no less favourable treatment of him than the named comparators, whether for the purposes of direct race discrimination, victimisation or his trade union activities complaint. We cannot interfere with those factual findings.

(4) Unfair Dismissal

The Tribunal found that the Appellant was dismissed in April 1999 for a potentially fair reason, capability. They considered the fairness of that dismissal under Section 98(4) Employment Rights Act 1996 and resolved that issue in favour of the Respondent (reasons paragraph 78). Dismissal for that reason fell within the range of reasonable responses open to the employer. We can see no grounds for an argument that that conclusion was legally perverse.

(5) Negligence and Tort

The Appellant complains that the Tribunal failed to consider whether the Respondent was guilty of negligence, causing him to suffer ill-health. The short answer is that the Tribunal has no jurisdiction to consider a claim for damages for personal injury, as Mr Stronach accepted in argument. Thus the question of negligence is immaterial. The circumstances in which the Appellant came to suffer illness may be relevant at the remedies stage once a claim of unlawful discrimination and/or unfair dismissal is made out. However that stage was not reached in this case.

Conclusion

22. Having taken time to consider this case in the round we are driven to conclude that this appeal raises no arguable point of law. Consequently it must be dismissed at this stage.