Tuckett v Ovum Ltd [2003] EWCA Civ 1237

Case No A1/2003/1453

[2003] EWCA Civ 1237

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Friday, 8th August 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE MUMMERY

Between

ROGER TUCKETTAppellant

-v-

Between

OVUM LIMITEDRespondent

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

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The Applicant appeared on his own behalf

for The Respondent did not appear and was not represented

J U D G M E N T

(As approved by the Court)

LORD JUSTICE MUMMERY:

[1]This is an application for permission to appeal and for an extension of time in which to appeal. The application is made by Mr Roger Tuckett in person. He has submitted a detailed skeleton argument in advance of the hearing today. Very helpfully he has submitted today, to accompany his oral arguments, a written summary of the main points which he wished to make.

[2]The decision which he wishes to appeal is that of the Employment Appeal Tribunal. On 14th June 2002 the Employment Appeal Tribunal, chaired by Mrs Recorder Cox QC, held a preliminary hearing of Mr Tuckett's appeal. At that hearing Mr Tuckett was represented by counsel, appearing under the Employment Law Appeal Advice Scheme. The Tribunal concluded that the appeal should be dismissed at that preliminary stage, as the Employment Tribunal were entitled to dismiss Mr Tuckett's claim on the basis that there had been no disability discrimination, in the light of their finding that Mr Tuckett was not dismissed for a reason relating to his disability.

[3]As will be apparent from what I have said of the Employment Appeal Tribunal's decision, Mr Tuckett brought a claim against his former employers, Ovum Ltd, for unfair dismissal resulting from disability discrimination. He was unable to pursue an ordinary unfair dismissal case because he had not been employed by Ovum Ltd for a qualifying period.

[4]Ovum provide consultancy services to industry and government. Mr Tuckett was employed by them as a principal consultant from 22nd June 1999 until, less than 12 months later, he was dismissed. The date of dismissal was 17th March 2000. On 16th June 2000 he submitted to the Employment Tribunal his application for disability discrimination.

[5]At an interlocutory hearing in the Tribunal it was conceded by Ovum that Mr Tuckett was suffering from a disability. Ovum's subsequent attempt to go back on that concession was rejected. The hearing in the Employment Tribunal at London Central took place over six days in May and September 2001. The Employment Tribunal reached a unanimous decision, which is explained in their extended reasons sent to the parties on 17th December 2001. Mr Tuckett represented himself at the Tribunal hearing. Ovum was represented by counsel.

[6]The unanimous decision of the Tribunal was that the claim of disability discrimination failed and should be dismissed. The claims for breach of contract and/or for unauthorised deduction of wages were also dismissed.

[7]The Tribunal summarised their conclusions in paragraph 41 of the extended reasons. They are set out in a series of numbered paragraphs and they explain the facts which they found. They concluded, as appears from 41(iii), that Mr Tuckett at all relevant times had a mental impairment, namely a depressive illness for which he took Seroxat. They said that that was a clinically well-recognised illness, which may have been bipolar affective disorder. It was in any event a depressive illness capable of being diagnosed and categorised within the WHO classification. So, they concluded (in sub-paragraph (v)) that Mr Tuckett succeeded in showing that he was disabled within the meaning of the 1995 Act.

[8]The Tribunal then referred to provisions of the Act and to the authorities which have interpreted them. They concluded that, on the matter of actual knowledge, no other employee knew that Mr Tuckett was exhibiting symptoms of depression and there was no basis in the evidence for finding or inferring that they had such knowledge. As to whether the respondent, Ovum, and its witnesses ought to have known of his disabilities from the facts, including the way the symptoms manifested themselves, the Tribunal answered that in the negative. The reasons for their conclusion are explained in sub-paragraph (ix).

[9]The Tribunal then turned to the reason for dismissal. They said it was under-performance as a principal consultant, including the failure to meet deadlines. They referred to other matters, such as failure to focus on projects, over-absorption in internal question questions of structure, poor quality reports and other staff sometimes finding it difficult to work with him. The Tribunal considered whether the reason for dismissal was related to disability as such, on the basis that the specific under-performance in the mind of Ovum was in fact related to his disability, in particular his mood swings. The Tribunal rejected that conclusion. In the light of their findings, they also concluded that there was no basis for saying that Ovum ought reasonably to have realised that the reasons for the dismissal might have been related to either disability or manifestations of it. So they said in sub-paragraph (xiv):

"Therefore, having carefully examined the question from a number of angles we conclude that the Applicant was not dismissed for a reason relating to his disability."

So, in the light of that conclusion, it was not necessary for them to consider the alternative defence of justification raised by Ovum.

[10]As I have already mentioned, the Employment Appeal Tribunal held on an appeal, which, as Mr Tuckett appreciates, was limited to questions of law, that the Employment Tribunal were entitled to reach that conclusion.

[11]Mr Tuckett decided to take the matter further. Unfortunately, he failed to issue his notice of appeal and an application for permission to appeal to this court within the time limit set by the rules. The notice of appeal is dated 30th June 2003. In it Mr Tuckett asks that permission to appeal to be granted out of time for the following reasons:

"From July - November 2002, the Applicant was suffering significant symptoms of his depressive illness. He believed at that time that pursuing an appeal risked aggravating his condition and would put an undue burden on his family and his marriage, and would affect the likelihood of him returning to full-time employment. He had been warned by his psychiatrist of this risk. In any event, he believed the route for 'appeal' was by way of Review by the Tribunal on questions of fact. From November 2002 to June 2003, he was pursuing the matter by way of Review by the Tribunal, and subsequently by reference to the EAT. He believed that the error of the Tribunal was a matter of fact, not of law. This had been the clear message from the EAT Judgement. On 16th June 2003, the EAT wrote to the Appellant suggesting any further reconsideration of the case must be by way of appeal to the Court of Appeal."

Mr Tuckett had in fact requested a review of the Employment Tribunal's decision in November 2002. That application was refused.

[12]In Part C of his appeal notice Mr Tuckett also states, in detail, that he wishes to rely on additional evidence in support of his application. I will return to that in a moment.

[13]It turned out to be unnecessary for me to explain to Mr Tuckett what the limitations were on the jurisdiction of this court to disturb decisions of Employment Tribunals on matters such as disability discrimination. He explained to me that:

"I am acutely aware of the limited jurisdiction of the EAT and this Court to delve into matters of factual investigation and evidence, and the fuzzy line which divides questions of fact from questions of law."

[14]His appreciation is accurate. This court only has jurisdiction to hear appeals on questions of law. Questions of law are those which consist of errors in the interpretation or application of the law to the facts found by the fact-finding tribunal, that is the Employment Tribunal. There is no appeal, either to the EAT or to this court, on questions of fact which turn on such matters as having to decide whose account of the facts is probably true.

[15]On the other hand, Mr Tuckett said that he was in no doubt whatsoever that the Employment Tribunal's decision in this case was wrong. To allow it to stand would constitute a serious injustice. The application he made to this court was that justice must be done. In support of that he set out detailed points in his skeleton argument. He has referred to a number of paragraphs in that, highlighting the legal arguments which he wishes to advance. He referred in particular to paragraphs 12 to paragraph 35K, which refers to the case of Morgan, an EAT decision. Then, most helpfully, he refers in paragraphs 46 onwards to the detailed grounds of appeal in the present case. In paragraphs 46 to 67 he sets out, in clear sections under headings, his main areas of dissatisfaction with the Employment Tribunal decision. First, that the Tribunal had a responsibility to adopt a proactive role in mental disability cases. Secondly, there had been, he said, incorrect application of legal principles in this Tribunal decision. Then there had been refusal to allow review. He then referred to additional evidence which he had wished to introduce, in particular, a January 2002 psychiatric report and general medical reference material, which he submitted satisfied the tests for the admission of additional evidence after the decision has been made. He then referred to the recent case law on discrimination after the termination of the employment contract.

[16]In the paper which Mr Tuckett has prepared for today, he very helpfully explains the background to his proceedings and his criticisms of the decision. He explains the background to his particular mental disability, bipolar affective disorder, and the serious consequences that it has for the people who suffer from it. In particular, the resulting destruction of personal and professional relationships. He refers to a number of well-known sufferers from depressive illness. He says he was dismissed in March 2000 whilst suffering from this disorder, and at that time the true nature of his condition was undiagnosed. The appeal is mainly about the appreciation of the seriousness of his condition and the availability of medical evidence before the Tribunal.

[17]On specific legal matters he referred to the three tests which have to be considered by the 1995 Act. First, was the appellant disabled under that Act? The Tribunal found in his favour on that after the concession to which I have referred. Secondly, did the disability make a significant contribution to the dismissal decision? The Tribunal concluded that it had made no contribution whatsoever. Thirdly, was the action of the employer, Ovum, justified? As he rightly pointes out the Tribunal declined to consider that issue.

[18]As Mr Tuckett appreciated, the Tribunal was not asked to consider the test of unfair dismissal because it found against him at the earlier stage of deciding what was the reason for his dismissal. As regards that, he said that the Tribunal had based its decision on three pieces of medical evidence: a report from a psychologist in November 1998 describing his then depression symptoms; next, a letter from his GP of September 2000 stating that bipolar disorder was suspected; and thirdly, the Tribunal's own limited understanding of such illness. He pointed out that Ovum had submitted no medical evidence, having made the concession that he was suffering from a disability. Mr Tuckett complained that the Tribunal took no notice of a letter from his GP dated May 2001, confirming the diagnosis and stating that he was still not fit to return to full-time work. The letter was mislaid, and the Tribunal took no notice of his own evidence. He said that that was ignored as it was considered to be unreliable. He pointed out there was no opposing or conflicting medical evidence. The Tribunal's stated reasons for the unreliability of his medical evidence appears to be as a consequence of the Tribunal's resolution of significant factual conflicts in the two sides' version of events, to his tendency to gain greater self-awareness of his condition and its symptoms and manifestations as the hearings progressed, and the reticence on his part during the period of his employment to be completely open and uninhibited in disclosing his earlier medical history and treatment.

[19]He referred finally to the additional medical evidence, which I have mentioned in passing, which has become available since the Tribunal's decision, namely the psychiatric report of January 2002 and the now available literature on the condition from which he suffers and its symptoms. This evidence, he submitted, confirms that the Tribunal's decision that the disability and manifestations played not part in the decision to dismiss was wrong and that has resulted in a serious injustice.

[20]I am grateful to Mr Tuckett for the great care that he has taken in the presentation of the submissions. Having considered them, I have to return to the essential question. Is there an error of law in the decision of the Tribunal? The decision which I am focusing on is naturally that of the Employment Tribunal, which decided the questions of fact, directed itself to the law that should be applied to them and reached the conclusion which I have mentioned.

[21]I quite understand that Mr Tuckett is aggrieved by the result. Naturally anybody who brings a case involving this amount of emotional and intellectual effort will be disappointed by a decision against them. But I must ask is the disappointment one which this court is entitled to do anything about? It seems to me that the Tribunal correctly directed itself on the legal matters that were before it. It was for the Employment Tribunal to decide what the factual position was in relation to the crucial question: what was the reason for Mr Tuckett's dismissal? In answer to that factual question, they gave a clear answer that he was not dismissed for a reason relating to his disability. That is the conclusion that Mr Tuckett wishes to appeal against. It seems to me that there is no error of law in the way in which the Tribunal reached that decision. It correctly directed itself to the legal provisions in the statute and to the way that they have been interpreted by the courts, including this court. They considered the evidence that was before them. It was for them to make an assessment of the evidence and, in the light of that, to decide what, as a fact, was the reason for the dismissal.

[22]I conclude that there was no error which this court has jurisdiction to correct. As I explained to Mr Tuckett, an appeal to this court is not a re-trial of the original case, hearing witnesses to see if the same conclusion would be reached by this court, as was reached by the Employment Tribunal. It is not even a re-hearing of the case on paper. It is a review of the original decision to ensure that it was decided in accordance with the law.

[23]I should also mention Mr Tuckett's additional difficulty. I fully appreciate the problems of a litigant, even one as intelligent and articulate as Mr Tuckett, doing their case in person. However, the rules are clear. There is only a limited time for appealing. Only in exceptional cases will an extension be granted. In order to grant an extension, the court must be satisfied by the explanation given that it amounts to a real excuse for not acting earlier. I do not doubt the truth of what Mr Tuckett says in his notice of appeal as to why he did not appeal earlier. He has relied on the symptoms of his illness and to his belief, until corrected by the Employment Appeal Tribunal, that the correct way to pursue the matter was by way of review. Even so, it seems to me that an appeal which is not brought until over a year after the decision which it is sought to appeal is to be treated with circumspection.

[24]The respondent to a case in the Employment Tribunal and the respondent to an appeal in the Employment Appeal Tribunal is normally entitled to assume that, once the time for appealing has passed, there will be no appeal unless there exist exceptional circumstances for extending the time. I am not satisfied that the circumstances which exist in this case, taking account of the additional evidence which Mr Tuckett wishes to adduce, are sufficient to justify allowing an appeal to be brought so long after the decision was given.

[25]I would add, however, that my main ground for refusing permission is not that it is too late for bringing an appeal, but that there are no grounds in law for this court to hold that the Employment Tribunal decision was erroneous. So that, even if the appeal had been brought in time, I would still have reached the conclusion that it had no real prospect of success.

[26]I know that Mr Tuckett will be disappointed by this decision, as he must have been disappointed by the decisions in the Employment Tribunal and the Employment Appeal Tribunal. But I must apply the law as I understand it. On my understanding, this appeal would not succeed. I refuse the application.

ORDER

Applications for permission to appeal and an extension of time refused; a copy of this judgment to be provided to the applicant at public expense. (Order not part of approved judgment) ______________________________