United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COZENS (Representative) Instructed by: Winchester Litigation Support 1 Stable Cottage Godsfield Manor Old Hampshire SO24 9RQ


 


HIS HONOUR JUDGE J R REID QC

1. This is the Preliminary Hearing of an appeal by Mrs Clifford against a decision of an Employment Tribunal held at Southampton on 3, 4 and 5 February 2003. By its decision the Tribunal dismissed Mrs Clifford's complaints of unfair dismissal, disability discrimination and breach of contract.
2. Against that decision, with the assistance of Mr Cozens who has appeared before us today on her behalf, she now wishes to appeal. We are extremely grateful to Mr Cozens for his assistance in a not very hopeful case and for trying to make bricks without any noticeable amount of straw. He suffers from the disadvantage that it was not he who represented Mrs Clifford before the Tribunal and it may well be that matters would have been conducted rather differently had he been the advocate at the Tribunal.
3. The areas which Mr Cozens says warrant this matter going to full hearing are essentially four. The first is that he says that the Tribunal did not in its reasons adequately or at all deal with the evidence of a Mrs Godfrey, who was formerly a training officer employed by the Respondent Citizen's Advice Bureau. She had attended and given evidence under a witness order. So far as that is concerned, whilst it is true that the form of the decision given is to set out the facts as found, rather than to set out the evidence given by each of the witnesses and then thereafter set out the facts as found, the Tribunal clearly did pay attention to the evidence of Mrs Godfrey. It says in paragraph 22 of the decision:

22 "It was the Applicant's case that the Respondents well knew about her disability and were fully aware of its extent. She gave evidence, supported by Mrs Godfrey (whom we found a helpful witness), that she had from time to time come to work wearing ECVG terminals and had from time to time had to go to hospital appointments.

4. It is clear, therefore, that not only did the Tribunal take Mrs Godfrey's evidence into account, but that it used it in reaching its decision. There is, therefore, no substance in this point which, in any event, is not a point which has been raised anywhere in a fairly copious Notice of Appeal.
5. The second matter that is complained about is that one of the witnesses (to use the term loosely) was a Mrs Winter. She did not attend to give evidence. She had been a member of the management committee of the Portsmouth CAB and she had attended two job interviews in which the Applicant, Mrs Clifford, participated. Her statement was read. Criticism was made that different reasons for her non-attendance were given on the first two days of the hearing; namely on the first day that her husband had a heart condition and on the second day that her husband was having a knee operation. Their reasons incidentally are not mutually inconsistent; there is no reason why a person with a heart condition should not have a knee operation. On the third day when she failed to attend an application had been made for an adjournment for her attendance for cross-examination, which was rejected.
6. So far as that is concerned, it is said that her witness statement, although it dealt with certain matters, did not deal with all the matters which the Tribunal might have wished her to deal with and which Mrs Clifford wished her to deal with. It is said that:

"By reason of her attendance at those two interviews, which were not matters dealt with in her witness statement, she could have given evidence which might have been of assistance to Mrs Clifford."

7. This is an entirely new way of putting the point and it is clear to us that this was not the way in which the point can have been put to the Tribunal. In the Notice of Appeal what is said is this:

6.10.b "Page 1.4 Brenda Winter did not attend the Tribunal [for differing reasons presented by the Respondent's Counsel each day of the Tribunal], she did not provide any medical evidence as to her non-appearance and as a consequence the Applicant was denied natural justice in challenging the witness statement on oath by cross-examination. This is a fundamental breach of Article 6 of the Human Rights Act 1998."

It will be observed that there is not a hint in there that far from seeking to challenge the evidence that was contained in her witness statement what the Appellant wished to do was to use her as a witness to be relied on in relation to other matters.

8. It seems to us that the decision to refuse an adjournment so that she could attend to be cross-examined was one which was within the competence of the Tribunal. It cannot be said that there was any error of law in that, particularly in the light of the way in which, until today, the reason for her attendance being required was being put.
9. The Tribunal carefully and properly said, when dealing with that statement (see paragraph 4 of the reasons):

"We read that statement and took it into account in coming to our decision, but did not attach to it such weight as we did to statements made by persons who came to the Tribunal to give evidence on oath and who were subjected to cross-examination."

It seems to us, therefore, that that matter also is one which does not give rise to any arguable ground of appeal.

10. The third point that was raised today was that there had been non-disclosure of documents. There had been no order for disclosure. We were told today (although it does not appear in the chronology presented to us and we have not seen any order to that effect) that an application for disclosure was made but was refused by the Chairman at some time before the hearing took place, namely in September 2002, the hearing having taken place, as I have said, in February 2003.
11. The documents which it is said were not disclosed were essentially parts of Mrs Clifford's personnel file and it is said that if those documents were not before the Tribunal Mrs Clifford was denied a fair hearing and the Tribunal decision was therefore unfairly flawed.
12. There could of course been no reason why, if there was an application for specific discovery of those documents which was refused, that decision should not have been the subject of an appeal. Equally, if there had simply been a generalised application for some form of order for disclosure, there is no reason why a specific order for disclosure should not have been made.
13. We have been shown a substantial volume of documentation which was produced after the hearing, being parts of Mrs Clifford's personnel records. We have to say that it does not seem to us there is anything there, or there is likely to be anything, which could conceivably have affected the Tribunal's decision. In any event, to seek to complain now about non-disclosure seems to us to be far too late, no proper complaint having been made at any earlier stage before the conclusion of the hearing. The documentation itself would not, we think, have assisted the Tribunal in dealing with the matters that they had to deal with, and I will return in a little while to the decision that the Tribunal actually came to.
14. The fourth matter which was canvassed, albeit at the very end of Mr Cozens' submissions to us, was that medical evidence should have been adduced. There was a doctor's report before the Tribunal, but it was suggested that the psychiatrist who made the report should have been called to give evidence and that the failure for him to give evidence orally and be subject to cross-examination, was in some way a defect in the proceedings. It should be noted that this was a medical report obtained very much at the last moment by the Applicant and was intended to deal with the question of her fitness to attend at the hearing.
15. There is no reason why she should not, had she thought it appropriate, have sought to obtained that or other medical evidence and there was certainly no duty upon the Tribunal to require the attendance of a, no doubt, eminent and busy medical practitioner of its own motion when his attendance was not required by either party. In our judgment, that point too is a point of no substance.
16. If one looks at the Tribunal's decision, it is noteworthy that the Tribunal found on the facts against Mrs Clifford in virtually every regard. It went on to find that in any event the vast bulk of her complaints were out of time and that it dealt with all of them. Those complaints that it would have held were in time were dealt with fully, comprehensively at paragraphs 53 to 60 of the Decision. It went on to find at paragraph 62, having referred to the Applicant's resignation on 6 March 2001 in paragraph 61, as follows:

62 "It was the Applicant's evidence (though this was not a complaint made in the Originating Application) that Mrs Budge and Mrs Lodder had been parties to a conspiracy to get rid of her and that this would not have happened to a non-disabled person. We find that complaint to be unsupported by any evidence, other than the bare assertion of the Applicant and find that there was no such campaign on their part.

63 In summary, we find that with the exception of the complaint of exclusion from the workplace until a medical certificate was produced, the Applicant was not treated less favourably than a non-disabled person would have been. There was no discrimination against her pursuant to section 5 (1) of the 1995 Act and we also find that, individually or taken together, they did not amount to a breach of the covenant relating to trust and confidence. For the reasons set out above we find that the exclusion from the office until a medical certificate was produced was entirely justified. Equally, it did not amount to a breach of contract on the Respondent employer's part. The Applicant's complaints of disability discrimination and unfair constructive dismissal are, therefore, dismissed."

17. Nobly though Mr Cozens has tried to persuade us that there is some matter which should go to a full hearing, we are unable to identify any point of law which should go any further. It may well be that had Mrs Clifford had some form of professional or quasi-professional advice when she went to the Tribunal, rather than relying on her current husband, her case would have been conducted rather differently. But it is not a justification for sending the case back for a re-hearing that a party thinks that with the benefit of hindsight they would have done things rather differently and might thereby have achieved a rather better result.
18. In those circumstances, we take the view that this appeal should go no further and should be dismissed at this stage.