Garg v Merton & Sutton Health Authority & Ors [1991] UKEAT 489_91_0412

EAT
Garg v Merton & Sutton Health Authority & Ors
[1991] UKEAT 489_91_0412 · 1991-12-04
MR JUSTICE WOOD (PRESIDENT): Dr Garg is now a Consultant Psychiatrist, at the time of the events which are relevant for the case currently before an Industrial Tribunal he was a Medical Registrar. He comes from an ethnic minority and by an Originating Application dated 7th March 1990 he alleged that he had been the subject of racial discrimination.He had taken employment as a locum Registrar at the Sutton Hospital in the Psychiatric Department between the 8th and 15th August 1988. The Hospital terminated his temporary employment on the grounds that he was not performing satisfactorily as a Registrar and his case, put in a nutshell, is that it was quite wrong and totally untrue and invalid to criticise his performance as a Doctor. This was only done because of his race and therefore he has been a victim of racial discrimination.The matter went through the usual phase of questionnaires and other documentation, which for want of a better word I will call the pleadings, and a Hearing started in front of an Industrial Tribunal on the 25th June of this year.Running in parallel, but of no materiality, save just to mention it, are proceedings in the County Court in which Dr Garg is claiming his fees. He cites there two defendants, the first is the Employment Agency, "Reliant Locums" through whom he was engaged and the other is the Health Authority which probably by now would have changed its name.The case for the Respondent, which is now the St Helier National Health Service Trust is set out in two documents to which we have been helpfully referred by Dr Garg the first is a letter signed by Miss Louise Flint, the Deputy Operational Manager of the Community Mental Handicap Services at the Queen Mary's Hospital for Children, Carshalton dated the 12th December 1989, which is page 48 in the bundle of documents prepared for us, and that indicates that complaints from medical staff working alongside him about his conduct on the wards and the way he treated his patients. That is set out in that letter. Then the whole detail of the case being presented against him is set out in various parts of a long letter from Dr Torquil McCleod, a Consultant Psychogeriatrician headed:

"Sutton Hospital

Chiltern Wing

Cotswold Road

Sutton

Surrey

SM2 5NF"

That was before the Tribunal and is before us and that was shown to Dr Garg.At the first day of the substantive Hearing 25th June 1991, a Dr Kingsley Norton was by consent, dismissed from the proceedings and on the following day, the name of the Respondents was changed and then on that 26th an application was made by Dr Garg. That application is shown as pages 12 and 13 of our bundle; it asks for a number of matters. The application was dealt with by the learned Chairman and the Tribunal, whose Reasons are given in a letter of 27th June 1991. They deal with an application for inspection and they make a further Order for inspection because there had been a muddle over the name of a patient it was thought to be a Mrs Gibbs but it was in fact a Miss Hicks. That was dealt with and a further Order was made for inspection.Then there was an application for further inspection of particular documents and that is dealt with in the next paragraph of that letter of the 27th June 1991. This paragraph reads:
"The applicant also asked for an Order for Inspection of (a) the 24 hour nursing report relating to the incidents of the morning of Saturday, 13 August 1988 and (b) the relevant nursing report (from the appropriate cardex) relating to the examination of Miss Hicks. The Tribunal refused to make an Order for Inspection of either of those documents on the ground that the applicant could have applied for an Order in respect of them before the case came on for hearing."
Then the Tribunal go on to say that of course the hospital authorities can give inspection of those documents in the time before the Hearing comes on again, but no Order was made and it seems to us likely that those documents are open for inspection.The third matter which was dealt with in that letter before adjourning the case was that Dr Garg had asked for the following:
"Please provide details of the make of the bleep together with the source of the bleep ie whether the bleep belonged to the Hospital or it was the property of Dr. Garg."
That request arose out of part of the evidence indicated in correspondence namely, that Dr Garg had been bleeped on several occasions and had answered some bleeps but not others. The Tribunal refused that request; they thought that, if relevant, that question was a matter for evidence and not necessary to enable the Applicant to know the case he had to meet.That is the first set of Orders against which Dr Garg appeals. The real matter arising out of those set of Orders is the issue about the bleep because as we understand it these other documents can be produced or inspected before the Hearing is next resumed. The bleep it seems to us is properly dealt with by the Tribunal, it was within their discretion whether or not to think it relevant. In due course if the make becomes relevant then no doubt the matter can be dealt with in evidence but it seems to us at the moment that the Industrial Tribunal were perfectly correct and within their powers in reaching the Decision they did and there is no error of law on that occasion. Whilst dealing with the question of an error of law it is important for us to remember, and we merely cite this as Dr Garg may understand the legal position, that where we have interlocutory appeals then providing that there is power to make the Order and providing that there is no fundamental principle that has been transgressed, for instance the sort of problems that came to light in the Nasse case where the confidentiality of the identity of other comparators was at stake, then the Wednesbury rules apply and either the appellant must satisfy us that the Tribunal failed to take into account something it ought to have taken into account; took into account something it ought not to have taken into account or was just plainly wrong. Applying those principles we can find nothing to criticise in the Decision which is recorded in the letter of the 27th June 1991.The next matter which occurred was that on the 26th July an Order was made for the Respondents to produce for inspection on reasonable notice, those documents which they intended to rely upon at the Hearing.Also on that date there was a letter from the Tribunal to Dr Garg dealing with a request for Further and Better Particulars. That request is contained in a letter of the 9th July which is at page 19 and that letter includes a request for Further and Better Particulars which Dr Garg has, as we understand it from him copied from a similar request made by Counsel in the County Court proceedings; that request was made on advice from Counsel.The Chairman refused that Order for Further and Better Particulars and the basis of the refusal was that Dr Garg was sufficiently informed of the case against him on the basis of the two letters to which we have already referred. The first was the letter of the 12th December 1989 and that is not of great length but nevertheless it does indicate that three days after Dr Garg's appointment complaints were received from those working alongside him as to his conduct in the wards. The nature of the complaints was aimed at the way he treated his patients. Verbal complaints from nurses and patients alike and a particular incident when there was a complaint that Dr Garg was on call and refused to attend to an in-patient who was having some form of eleptiform fit.The letter of 15th June extends over some two pages and a bit; it is an extensive recitation of the facts and circumstances of what occurred during this very brief period of appointment as Registrar; indeed if one couples together the relevant paragraph the story is set out on a full page of A4 in close type, it must be some 40 or so lines, and it is a long, extensive and detailed explanation of what occurred.The learned Chairman took the view that that was an ample notice of the case against him, we respectfully agree. Dr Garg may not quite appreciate the purpose of Further and Better Particulars; they are not to give the evidence in a case, that is not the object of Further and Better Particulars. Further and Better Particulars are to give notice of the nature and extent of the case being brought against him or as the case may be. It is not the evidence, the evidence is a matter for the Hearing, it is sufficient notice of the case that is being brought against him and the learned Chairman took the view that that was sufficient indication of the case. We have read those documents with care and we respectfully agree. We can find no error either in that Decision.The third matter going on in date order are some decisions contained in a letter of the 2nd August 1991, again within a few days of the earlier Orders. The matter are raised as referred to in a letter of that date by a letter from Dr Garg of the 28th July 1981 on pages 8 and 9 of our bundle. Those matters are dealt with together with the earlier decisions to which we have already referred in the letters of the 27th June and the 26th July. Those are referred to in the letter of 2nd August saying no further reasons will be given, there it is, if you do not like it you must appeal. But they then deal specifically and carefully with the five requests in the letter of the 28th July.The first request was for an Order for general discovery supported by an affidavit. The Tribunal give as its reasons for refusing to make that Order:
"It is not the tribunal's practice to make orders for general discovery of documents, nor is it the tribunal's practice to require a list of documents to be verified by affidavit. Moreover, any order for discovery which either party desired could and should have been made before the case came on for hearing."
Dr Garg takes the point that earlier on he had asked for some documents which had not been produced. He referred, in fact, to a letter of his to the Regional Office of Industrial Tribunals dated the 7th August 1990, which was at pages 96 and 97 and in particular he referred to an earlier Hearing a Pre-Hearing Assessment and to the fact that the letter of the 15th June, to which we have already referred, had been sent to the Tribunal but may possibly not have been forwarded to him. However he has that letter now, it is in the bundles and we have read it, we have already considered it. It seems to us that the discretion of the Industrial Tribunal was properly exercised and indeed we understand that the documentation is now complete, in any event there now stands that Order of the 26th July that any documents they are going to rely on must be produced for Dr Garg's inspection and therefore if they are not produced chances are that the Respondents will not be allowed to rely upon them.The second matter was the request for an Order that a Mr David Grafton, who was the District Personnel Manager who was conducting these proceedings on behalf of the Authority, be ordered to send all letters which had been intercepted by him to the Respondent and which were written by the Applicant, this should include various other matters. The point taken by Dr Garg there was that certain documents which he had written to others and to Mr Grafton had gone to his office and Dr Garg was not convinced that the addressee had received them. The Tribunal said that they had no power to make an Order of that kind and indeed we agree. Any documents that are relevant will be produced if they are to be relied upon, if not Dr Garg himself will no doubt have copies and we can see no injustice arising out of that decision.Thirdly, Dr Garg sought to add Mr Grafton and Miss Morris as Respondents on the grounds that they both intercepted letters addressed to the Respondents. That was not granted, it was not found to be a sound ground, that was again within the Tribunal's discretion we can find no criticism of that.The fourth request was for an adjournment which was complied with.The last request and I read from the paragraph numbered 5 of that letter of 28th July 1991:
"An Order that the panel of the Industrial Tribunal which consists of laymen be declared unfit to hear the matter relating to the Respondents allegation relating to alleged medical incompetence of the applicant which can only be judged by the bodies set up pursuant to the Medical Act 1983."
We have helpfully been referred to that Act and of course we are all three well aware of the provisions of the Medical Acts and the presence of the General Medical Council, which act as the disciplinary body for medical practitioners.The Tribunal dealt with that matter, again in numbered paragraph 5, towards the end of that letter of the 2nd August where they say:
"The composition of the tribunal is prescribed by Regulation 5 of the Industrial Tribunals (England and Wales) Regulations 1965 as amended by Regulation 4 of The Industrial Tribunals (England and Wales) (Amendment) Regulations 1967. There is no power to appoint assessors in respect of cases, such as the present, brought under the Race Relations Act 1976. If you consider a tribunal composed in accordance with the above mentioned Regulations is unfit to hear the matter, it is open to you to withdraw your application."
As we mentioned early on, Dr Garg puts his case in this way. "That the criticisms of my conduct were wholly unfounded and that they were only made because I come from an ethnic minority." He makes his case in that way and he submits that the Tribunal is not really a fit and proper Tribunal to hear his case.He has in fact written to the Tribunal in that letter of the 7th August 1990 and it is quite apparent, as he makes clear there, he says:
"My purpose of bringing cases before the Industrial Tribunal is not to win them because I know that racists sitting on the panel of the Industrial Tribunal will seek to dismiss matters brought before them."
Well, whether that really is his view or whether he is seeking to move this away to the General Medical Council, because he thinks he will not receive justice in front of an industrial tribunal, we know not, but he brings his case of racial discrimination, the industrial tribunals are the tribunals appointed under the Statutes and Regulations for the hearing of these matters. They will hear it. If there is any question of expert evidence, no doubt that Dr Garg if he wishes may call expert evidence; the Respondents if they see fit, will call expert evidence and the matter will be decided as one of expert evidence.It is not so difficult in the light of good expert evidence for laymen or women to deal with comparatively simple issues. Here we have the issue of diagnosis of pneumonia, we have the general behaviour which does not require expert medical knowledge, it will evolve from the evidence and we venture to think that Dr Garg is perhaps a little over anxious about the ability of the industrial tribunal to cope with this sort of problem when it comes before them.However, we would give one word of advice, we hope friendly advice, that if Dr Garg's real purpose is simply to run a campaign about these matters, and I see he smiles at me and appreciates what I am saying, that there is the danger all along the line that if his claims are without merit that he may find himself faced with substantial orders as to cost. We just hope that he does realise it and there is the risk there if that is done and I can see that he accepts and understands what we are saying to him.We cannot find here any grounds for criticising these Orders, they were made within the power of the learned Chairman on the Wednesbury basis we are unable to find any error and we cannot possibly say that they plainly wrong and therefore we are unable to help Dr Garg in his Appeal, they must be dismissed.