United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Miss S Fraser In Person 24 Flat 3L Nicolson Street EDINBURGH EH8 9DH
For the Respondents	Mrs S Craig, Solicitor Of- Messrs Shepherd & Wedderburn Solicitors Saltire Court 20 Castle Terrace EDINBURGH EH1 2ET


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against a determination by the Employment Tribunal against her, in respect of claims for discrimination under the Disability Discrimination Act 1995 and in respect of a claim for unfair dismissal.
2. The background to the matter is that the appellant was employed throughout the 1990s with the respondents in a number of jobs. She was finally transferred to the general office on 30 April 1997. Thereafter, she worked as a non-emergency Ambulance Care Assistant. In November 1998 she sustained an injury to her right ankle which required her to be absent from work. While on sick leave she fell over and fractured her right wrist. She required surgery and was off work thereafter until the date of her dismissal in the autumn of 2000 (see letter dated 23 November 2000).
3. The appellant's unfair dismissal claim was based on the circumstances surrounding her dismissal and again turned upon inter alia a letter dated 25 October 2000 addressed to her from Helen MacDonald, the Personnel Manager of the respondents, requiring her to attend a medical appointment. The appellant maintained to this day that she never received that letter.
4. The Tribunal focussed this matter as follows:-

"On 25 October 2000 Helen MacDonald wrote to the applicant advising that an appointment had been made for her to be examined by Dr Badger in relation to her current absence on account of sickness and gave two alternative dates for the appointment and also offered to arrange transport for her. However, the applicant did not attend either of the appointments and did not contact the respondents thereanent. The letter requesting that she attend the medical appointment was sent to the applicant more than three weeks after her solicitor's letter suggesting the non-negotiable £20,000, two and a half week's after the letter seeking to arrange the medical appointment with Dr Badger, five days after the applicant had cancelled the meeting with Jim McCafferty and Helen MacDonald and also the letter from her GP suggesting alternative arrangements. The letter was also written prior to the applicant's departure for a holiday in India on 29 October 2000 where the applicant remained until 21 November 2000. The Tribunal had no doubt that the applicant did not advise the respondents that she was leaving the country, nor when she was to return. There was a conflict in the evidence as to whether or not the applicant advised her own solicitors of the details and timings of her travel arrangement. It appears that during her absence the respondents' solicitors wrote the applicant's solicitors advising that the applicant had failed to attend at the appointments made for her, proposing other dates for appointments but intimating that if she did not confirm that she was to attend these by 17 November 2000 the respondents would terminate her employment (Production R85). The applicant's solicitors acknowledged that letter by fax of 13 November stating that "Hopefully (we will) be in a position to advise you further by your deadline of 17 November". The evidence was blurred on the question of whether or not her solicitors knew that the applicant was in India at that material time. There was no further correspondence from the applicant's solicitors until after the commencement of the present application to the Tribunal (Production R87). The applicant's solicitors did not advise the respondents that the applicant was out of the country in India and that she would not be able therefore to meet the 17 November deadline. The applicant on the other hand claimed to have advised her solicitors of her trip. Given the objective evidence in this regard the Tribunal have to state that they do not find the applicant reliable on the matter and are of the opinion that on the balance of probabilities the applicant did not keep her solicitors fully appraised of the situation.

In the event no response was received from the applicant by the 17 November deadline. On 23 November Helen MacDonald wrote to the applicant terminating her employment on the ground of incapability with effect from 24 November 2000. The applicant received a payment in lieu of notice which was set off against money due under the respondents' Benevolent Fund. The applicant was also advised of her right to appeal the decision to dismiss her (Production R88). She did not appeal."

5. The Tribunal returned to the matter on page 10 in the following terms:-

"The applicant had asserted that she did not receive a letter of 25 October (R83) inviting her to attend an appointment with Dr Badger. Mrs Craig urged the Tribunal to find that this was simply not credible. The Tribunal had little difficulty in unanimously agreeing with Mrs Craig on this matter. The letter is dated some four days prior to the applicant departing Edinburgh for India. Even if she was not living in her own flat at the time it stretches credibility to suggest that before departing on 29 October the applicant (or someone on her behalf), did not go to her flat to pack or to check her mail etc. The Tribunal therefore conclude that the applicant opted to leave for India in the knowledge of the respondents' proposal that she be examined by the Occupational Health Doctor (who had seen her previously) in order to assess her long-term illness. Again, the Tribunal unanimously accept Mrs Craig's submission that the applicant was fully aware of the steps that the respondents were trying to take in relation to her prolonged illness. She had received the letter of 6 October (R79) – again inviting her to a meeting although this time with personnel. Campbell Dunlop cancelled that meeting (Production R80) and advised the respondents that any further dealings with the applicant would require to be through her solicitor or himself."

6. All this is against the general conclusions of the Tribunal on credibility which can be found on page 14 in the following terms:-

"The Tribunal considered carefully the competing submissions on the question of unfair dismissal and are indeed grateful to both solicitors for the considerable assistance they afforded the Tribunal in their detailed and skilful presentation. However, the Tribunal have no hesitation in preferring the submission of Mrs Craig over that of Ms Langlands. The Tribunal should state that while much of the evidence was agreed where conflicts arose the Tribunal broadly preferred the evidence led by the respondents to that of the applicant. In some respects the Tribunal regarded the applicant's evidence to be unreliable. In at least one material respect the Tribunal regarded the applicant's evidence to be lacking in credibility. This referred to the applicant's visit to India. The Tribunal simply do not accept that the applicant set off for a last minute and hastily arranged visit to India on 29 October without having received the letter of 25 October (Production R83). The Tribunal, broadly for the reasons advanced by Mrs Craig, have reached the unanimous view that the applicant was not unfairly dismissed and that her claim therefore should be refused."

7. It is to be noted that that last paragraph focuses on the issue of the unfair dismissal and the conclusions of the Tribunal.
8. Before us, the appellant made a number of detailed submissions but unfortunately were all on matters of fact when she was seeking to challenge or overturn the conclusions of the Tribunal on relevant factual issues. She sought, for example, to argue that she had a good reason for going to India and no sinister inference should be drawn from those facts as the Tribunal appeared to have done.
9. It is an unfortunate fact that persons representing themselves before this Tribunal frequently fail to appreciate the very limited scope of this Tribunal's jurisdiction. It is not a Court of review, let alone a Court of evidential re-hearing. It is only concerned with issues of evidence where the Tribunal has, manifestly, on the face of its own record, either failed to address an issue or failed to reach a conclusion which must be categorised as perverse. In this particular case, the Tribunal have analysed the issue surrounding dismissal with great care and produced cogent reasons as to why they determined the issue against the appellant, not least finding her generally, if not incredible, unreliable on crucial issues. This is an exercise which they must carry out and a conclusion in respect of which we cannot interfere.
10. Quite separately, the appellant also concentrated upon the findings of the Tribunal that she was not suffering from a disability either physically or mentally in terms of the definitions provided by the Disability Discrimination Act 1995. In this respect the conclusions of the Tribunal are as follows:-

"The Tribunal also formed the view that so far as any mental impairment was concerned the evidence before it did not entitle the Tribunal to conclude that at the time of the dismissal the applicant was suffering from an illness that is clinically well recognized and which would fall within the ambit of the 1995 Act. Dr Rigden told the Tribunal that as at the date of the hearing she was treating the applicant with anti-depressant and anti-anxiety drugs. She did not give evidence to the Tribunal that the applicant was clinically depressed at the time of the dismissal. She further did not give evidence as to the duration of any illness that the applicant may suffer from. Her evidence was that the applicant was anxious and had a low mood. She did not give formal evidence that as at the time of the Tribunal the applicant actually suffered from a clinically well-recognized illness (e.g. in terms of the World Health Organizations International Classification of Diseases) nor whether the applicant suffered from a disease in circumstances that would qualify. On the other hand Dr Badger's evidence described the condition as reactive to the strain of the situation. No evidence was led that this type of reactive stress was a clinically well recognized "illness" as opposed to a response to being in what the Tribunal certainly accepted to have been a very stressful situation."

11. In this respect the appellant made much of the evidence of Dr Nuttall but it is perfectly apparent to us, as the Tribunal conclude, that he was concerned with periods after the date of dismissal and could not properly express any opinion with any force or substance as to the appellant's mental state while she was still employed.
12. The Tribunal accordingly conclude as follows:-

"In conclusion therefore the Tribunal are of the unanimous opinion that there is no evidence before it from any medical witness of a diagnosis of a mental impairment that would bring the applicant's condition within the ambit of the statutory definition. The word "depression" was banded about but the Tribunal had no evidence before it to define a medical diagnosis of depression exhibiting symptoms which would amount to a qualifying disability. The tribunal simply cannot make the quantum leap. As a matter of interest in answer to a question posed by the Tribunal at the end of his evidence Dr Badger said in terms that as at November 2000 the applicant was not suffering from clinical depression."

13. Here, again, this is a conclusion with which this Tribunal cannot interfere being essentially a question of fact. The conclusions of the Tribunal are adequately based upon the evidence and well argued and reasoned.
14. We recognise there is great anger in the appellant's mind as to the way she was treated and that also she has suffered and may still be suffering from a depressive illness which compounds the matter. Whatever may be our sympathies for her they cannot weigh the balance of the proper legal issues to be addressed by this Tribunal.
15. Mrs Craig, appearing for the respondents, contented herself, as far as the substance of the matter is concerned, to submitting that no questions of law were raised by the appellant before this Tribunal and with that we agree. However, she maintains strongly that the appellant had overstepped the mark to a material extent with some of her submissions which tended to suggest that evidence had been fabricated by the respondents and that some form of fraudulent scheme had been embarked upon by their witnesses to mislead the Tribunal. While we accept that feelings can run high in a case of this sort, we deprecate this type of approach which, on one view, defames reputation of a public body. We therefore have no hesitation in refusing to entertain any aspects of this case which suggest any from of manipulation, fraud or manufacturing of evidence. There is absolutely no basis for such a suggestion to be validly made in this case. In this context, Mrs Craig asked for costs on the grounds that the appellant was becoming a vexatious litigant. We have some sympathy with this approach but, in the circumstances, given that the appellant represents herself, that she plainly has a burning sense of injustice and grievance, we do not think, in the exercise of our discretion, it is appropriate to make any order.
16. In all these circumstances and for these reasons this appeal is dismissed.