United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS KATHERINE NEWTON (of Counsel) Instructed by: Messrs Gamble Morris Hills Solicitors 1884 Pershore Road Kings Norton Birmingham B303AS
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


HIS HONOUR JUDGE PETER CLARK

1. This case is presently proceeding in the Birmingham Employment Tribunal, where the parties are Mr Robinson, the Applicant and Acehead Ltd, trading as GB Precision Engineering Company, his former employer as Respondent. There is before me today an appeal by the Respondent below against an interlocutory Order made by a Chairman, Mr C J Goodier, communicated to the parties by a letter dated 7 January 2003, by which he gave the following direction:

"The case will be remain listed for hearing on 10 January 2003. The Respondent may renew its application for postponement at the start of the hearing"

2. Today the Respondent appears by Counsel, Miss Newton; the Applicant does not appear and is not represented, however I have before me a Skeleton Argument prepared on his behalf by his solicitor. I have taken the representations there contained into account in reaching my decision in this appeal. A copy of that Skeleton Argument has been provided to Miss Newton.
3. I take the background for present purposes to be as follows without, of course, being in a position to make any findings of fact, based on the forms IT1 and IT3 and documents contained in the appeal bundle.
4. The Respondent is a small manufacturing company based in Birmingham. Its principal director is Mr Paul Turner. The Applicant was a long-serving employee; his employment having commenced in 1970. He was a centre lathe turner.
5. From about 1992 the Applicant has suffered from Parkinson's Disease. That condition causes motor fluctuations affecting his manual dexterity. It is the Applicant's case, set out in his Particulars of Complaint served with an Originating Application presented to the Tribunal on 19 September 2002 that despite being told by the Respondent in a letter dated 16 April 2002 that it believed it was no longer safe for him to continue his work he did remain at work until his dismissal following a meeting held on 20 August. That dismissal, it is common ground, took effect on 31 August.
6. Prior to his dismissal the Respondent obtained the Applicant's consent for the Respondent to consult his General Practitioner. Thereafter the Respondent obtained a report from a Consultant Neurologist, Mr H S Pall, dated 8 August. Mr Pall recommended examination by an occupational health physician. No such report was commissioned by the Respondent before it dismissed Mr Robinson.
7. In these circumstances the Applicant complains of unfair dismissal and breach of contract (failure to make payment in lieu of notice) on the part of the Respondent. It is worth observing that no separate claim is brought under the provisions of the Disability Discrimination Act 1995.
8. It is specifically averred by the Applicant at paragraph 13 of his Particulars of Complaint that if the company had instructed an occupational health physician (as Mr Pall recommended) their advice would have been that there was no risk of injury to the Applicant as a result of his medical condition.
9. The claim is resisted by the Respondent, both as to liability and to remedy. In particular, as to remedy, it is the Respondent's case that obtaining an occupational health physician's opinion would have made no difference to the outcome. The Applicant would still have been dismissed and dismissed fairly. I shall call this the Polkey point.
10. In order to seek to make good its case on the Polkey point, the Respondent's solicitors sought and obtained on 20 November 2002 the Applicant's consent to his medical records being disclosed by both his General Practitioner and Mr Pall for the purposes of their obtaining an occupational health physician's report.
11. Meanwhile the case had been listed for hearing on 5 December 2002. That date was vacated on application by the Applicant. A new date, 10 January 2003 was notified to the parties on 20 November, On 25 November the Respondent's solicitors wrote to the two doctors, enclosing the Applicant's signed authority, seeking release of his medical records. They received no response, writing again on 19 December and then pointing out that the hearing was fixed for 10 January.
12. Having still not heard from the doctors the Respondent's solicitors wrote to the Tribunal on 3 January seeking:

(1) an Order for production of GP records and Consultant records on the Applicant to enable the Respondent to obtain an occupational health report;

(2) a postponement of the hearing listed for 10 January, on the basis that, in the absence of the medical records, no occupational health report had been obtained.

13. Both applications were resisted by the Applicant's solicitor by a fax dated 3 January. Further representations were made in writing to the Tribunal by the Respondent's solicitors on 7 January. The Chairman then made his Order on that date, directing that the case remain listed with liberty to apply at the full hearing but not dealing with the disclosure application. This appeal is directed solely to the refusal to order a postponement.
14. It is, correctly, common ground between the parties that interlocutory appeals of this type can only succeed where an error of law is made out. The appropriate test is that laid down under Wednesbury principles by Mr Justice Arnold in Bastick -v- James Lane (Turf Accountants) Ltd [1979] ICR 778. The relevant passage from Mr Justice Arnold's judgment at page 782 B - C is conveniently set out in the Applicant's Skeleton Argument. That approach was expressly approved by the Court of Appeal in Carter -v- Credit Change Ltd [1979] ICR 908, 918F, per Lord Justice Stephenson.
15. How then is the appeal put by Miss Newton? First, she emphasised the fact that this case has been listed for hearing tomorrow before the Tribunal on both liability and, if it arises, remedy. In these circumstances, she submits that the Chairman's refusal to order a postponement in circumstances where through no fault of the Respondent, the doctors have failed to provide the Applicant's medical records, is a decision that can be characterised as perverse in the sense that no reasonable Chairman properly directing himself could come to the conclusion that the case remain in the list.
16. Secondly, although there is some overlap, she submits that the Chairman has failed to take into account the overriding objective now introduced into the Employment Tribunal Rules of Procedure 2001, namely that in dealing with cases the Tribunal, in order to do justice, should ensure that the case is dealt with expeditiously and fairly. She submits that it is manifestly unfair to the Respondent to allow this hearing to proceed in the absence of critical medical evidence.
17. I reject both submissions. It seems to me that the decision as to whether or not to vacate this date, listed for the second time to take place tomorrow, was well within this Tribunal Chairman's wide discretion. I do not see that in getting on with the case, in the interests of the Applicant at least, the Chairman is failing to deal with the matter expeditiously and certainly I am not persuaded that unfairness necessarily arises in circumstances where it was open to the Respondent through its solicitors to obtain an occupational health report, albeit without the Applicant's medical records.
18. However, there is, it seems to me, a further consideration which militates against my allowing this appeal. The Chairman expressly granted permission to the Respondent to renew its application for postponement at the start of the Tribunal hearing tomorrow. I cannot presently see how the absence of a post-termination occupational health report bears on the liability issue in either the unfair dismissal or breach of contract claims, and Miss Newton does not submit to the contrary. I repeat, there is no disability discrimination claim advanced by the Applicant. In these circumstances there seems to me no reason why the hearing on liability at least should not proceed tomorrow.
19. On the other hand I see the potential relevance of an occupational health report to the question of remedy should the unfair dismissal claim succeed. In those circumstances two questions remain outstanding for the full Tribunal.

(1) Ought the question of remedy for unfair dismissal, if it arises, be adjourned pending the receipt of an occupational health report?

(2) What power exists which would allow the Tribunal to order disclosure of medical records against either the Applicant, who has given his consent for their release but does not have them in his possession, or against non-parties, that is the two doctors, and that if such a power exists, how should it be exercised on the facts of this case?

20. Before leaving this case I should add this observation. In Goldman Sachs Services Ltd -v- Montali [2002] ICR 1251, I expressed the view that interlocutory Orders once made ought not to be altered subsequently in the absence of a material change of circumstances, adopting the well established practice in the civil courts. However, that was in the context of 'final' interlocutory Orders, made after hearing full argument on both sides. I see nothing wrong in the Order made by Mr Goodier in the present case, on the basis of written representations only, which allows full argument at the substantive hearing of the renewed application for a postponement.
21. This appeal is dismissed.