Whitelaw v St George's Health Care NHS Trust & Anor [1995] UKEAT 1196_94_2305

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 1196_94_2305

Case No Appeal No. EAT/1196/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Whitelaw

St George's Health Care NHS Trust & Anor

Date 23 May 1995

MR JUSTICE MORISON : Dr Whitelaw, whom we shall call the Appellant, presented a complaint to an Industrial Tribunal on 12th January 1993 alleging that he had been unfairly dismissed by the Wandsworth Health Authority. In his IT1 he said that he had worked as a consultant in geriatric medicine since 1985. He said he wished to return to work in April 1992 following a period of mental illness, but that:

"Following pressure from my employer, I was prepared June 1992 to consider ill health retirement."

Having been given details of the likely benefits he would receive from such a course, he tried unsuccessfully to withdraw his application:

"... but the Wandsworth Health Authority stated it was unable to accept this withdrawal. As a consequence, the health Authority proceeded to terminate my employment on 31.10.92."

I contend that any dismissal was unfair, since it did not arise from capability, conduct, redundancy or some other substantial reason."

In his IT1 he asked for re-instatement and named a Mr Brown as his representative from B.M.A. House in Tavistock Square.

The Wandsworth Health Authority, whom we shall call the Authority, entered an appearance through solicitors, accepting as accurate the dates of the Appellants employment by them. In their IT3 they made it clear that the Appellant's contract was issued in November 1985 when he was appointed both by the Authority and St George's Medical School to the joint post of Consultant/Senior Lecturer in Geriatrics. The Authority set out in some detail the facts which they say led to the termination of the Appellant's employment, and contended that a binding agreement was reached whereby the Appellant had agreed to take ill-health retirement in consideration of the Authority paying him in full, as opposed to half-rate for the period he had been off sick. He was so paid, and the agreement between the parties became unconditional when the NHS Superannuation Division accepted the case for such a retirement under the pension scheme rules. Accordingly, when the agreed date arrived the employment was terminated by mutual consent. And therefore the Industrial Tribunal did not have any jurisdiction to deal with the matter.

In August 1994, over a year and a half after the original complaint of unfair dismissal, the Appellant indicated through solicitors that he wished to add a complaint of unfair dismissal against the School as well. The School objected, the Tribunal made an order ex parte joining the School, that order was set aside and on 14th September 1994 inter partes, an Industrial Tribunal held at Whittington House considered the Appellants application. Because of re-organisation within the National Health Service, the Authority is replaced by St George's Health Care NHS Trust, as the named respondent. By a written decision entered in the register on 7th November 1994, the Appellant's application to join the School was unanimously dismissed.

The matter comes before us by way of appeal against that decision. The Industrial Tribunals reasoning may be summarised in this way.

They directed themselves as to the proper approach to such an application and referred as their guide to dicta in the judgment of Sir John Donaldson in the NIRC in a case called Cocking v Sandhurst (Stationers) Ltd

[1974] ICR 650

They concluded, having considered all the circumstances that there had been no mistake in the naming or selection of the respondent.

On the balance of prejudice, the application should be refused.

In the Notice of Appeal it is said:

The Industrial Tribunal mis-directed itself in concluding that the omission or failure to add the School at the outset was a genuine mistake.

The Industrial Tribunal mis-directed itself when considering prejudice in three respects:

(i) It took into account and should not, the fact that the Appellant would have a remedy against his advisors if the application were refused;

(ii) It took into account the fact that the School had been lulled into a false sense of security and this was tantamount to the Industrial Tribunal refusing leave on the grounds of delay, which was a factor they ought not to have taken into account at all, or alternatively, if they were entitled to take it into account, they placed too much weight upon it;

(iii) It took into account, the fact that the School would be prejudiced by having to face a potential claim for compensation whereas this should have been an irrelevant consideration.

The third point made in the Notice of Appeal is that the decision of the Industrial Tribunal was perverse, when weighing the obvious prejudice to the Appellant against the lack of any real prejudice to the School.

There is one additional piece of factual background to which we should refer before turning to our decision in this case. After termination of his contract with the Authority, the Appellant exercised his right under paragraph 190, as it is referred to, to appeal against his dismissal to the Secretary of State. The Secretary of State contrary to the submissions made by and on behalf of the Authority determined that she had jurisdiction to consider that application, and, in due time, a ruling was made upon it against the Appellant, that decision being conveyed in February 1994. It is apparently the position that under various rules and regulations a consultant who exercises a right under that paragraph may, in certain circumstances, have his employment continued until the date of the decision by the Secretary of State. Accordingly, the Appellant launched proceedings in the High Court seeking judgment against the Authority for the pay which he said he was due from the end of October 1992 to the date when the decision of the Secretary of State was communicated in February 1994, based upon the rules and regulations to which we have just referred. During the course of those proceedings, the Appellant sought to obtain summary judgment against the Health Authority, and in the course that application he swore an affidavit in which said that he was employed solely by the Authority under the contract which he exhibited, that being the document relating to his clinical work.

On behalf of the School it is submitted that the Industrial Tribunal's decision was purely discretionary and we should not interfere with it. It seemed to us, that underlying the submissions made by Counsel is a difficult question which does need to be confronted, and answered, namely, does the Appellant have any arguably valid claim against the School. Only when this question is answered can a true assessment be made of the prejudice to the respective parties by the giving or refusing of leave to amend the Industrial Tribunal application: [the IT1].

The contractual position appears to be as follows: the employment of the Appellant was a joint one albeit with two separate contracts each linked to the other. Under the contract with the Authority, the Appellant was appointed a part-time consultant assessed at seven notional half-days a week. It appears that the salary which the Appellant received in respect of both positions, came entirely from the Authority. His contract with the Authority provided that in the event of him ceasing to hold the appointment of Senior Lecturer at St George's Medical School, the appointment of Consultant under the contract with the Authority "will be deemed to have terminated forthwith." St George's Medical School (the School) offered the Appellant an appointment as Senior Lecturer in the Department of Geriatrics on a part-time 4/11th basis. The letter of appointment provided that:

"It is a condition of your appointment that in the event of you ... ceasing to hold the corresponding appointment of Consultant with the Wandsworth Health Authority, your appointment of Senior Lecturer will be deemed to have terminated forthwith."

It would seem therefore, that the Appellant's appointment as Lecturer came to an end as a result of the termination of the Appellant's contract with the Authority, although other suggestions have been put forward by Counsel for the Appellant in this case, we have been provided with no material to suggest that the Contract with the School terminated in any other circumstances. Section 74(1) of 1978 Act entitles an employee who is awarded compensation to such amount as the Tribunal considers just and equitable:

"... having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

If of course it could be shown that the Appellant was unfairly dismissed by the Authority, then under normal principles part of the loss attributable to that wrong would be the loss of income from the Lectureship. Is there a separate and additional claim against the School, so that the Appellant has the opportunity to recover two sets of compensation? It was submitted to us by Counsel on behalf of the Appellant, that this was not one of the objects of the exercise. She specifically disclaimed any intention on Dr Whitelaws' part to claim two sets of compensation. As we have said, it is difficult to see how it can be argued that the School has terminated the Appellant's contract, so as to attract the provisions of Section 55 of the 1978 Act. The School has done nothing. The contract with the School has come to an end because a triggering event bringing it to an end has occurred; not because the School has terminated it. The trigger was not pulled by the School, it was, as we understand it, pulled by the Authority. If therefore there were two employments which can be separated in the way suggested, then it seems to us that the Appellant's claim against the School, would be bound to fail, because he could not establish that he was dismissed by the School, in circumstances which gave him a right to claim unfair dismissal. The case that there was one employment, as the Appellant put it in his affidavit to which we have referred, and I quote:

"... I was employed ... under a single contract. ... My salary was paid solely and in full by the Authority."

is more convincing. If of course there was one employment there is only one right to compensation and no need to join the School as a respondent to the claim for unfair dismissal. Therefore it seems to us that by depriving the Appellant of the opportunity to join the School the Appellant will not be caused any prejudice so far as financial loss is concerned. His complaint of unfair dismissal against the Authority, will, if it succeeds, give him compensation in respect of the loss also of his position as a teacher in the School. However, it seems to us, that if an order for re-instatement was made, it could probably only be made against an employer who was before the Industrial Tribunal. Section 69(2) of the 1978 Act, refers to an order:

"... that the employer shall treat the complainant in all respects as if had not been dismissed, ..."

As a matter of principle, such an order could not be made against an employer against whom no relief had been sought, and who had no opportunity to make representations.

It seems to us that the Industrial Tribunal has an express power to regulate its own procedure, and even though it could not be said that the School dismissed the Appellant, the School would become a necessary and proper party for the purpose of the relief which was being sought and could be joined if the circumstances showed that such an application was necessary. But it seems to us that the question of re-instatement will only arise if the Appellant has first established his case of unfair dismissal against the Authority and if he has satisfied the Industrial Tribunal that such an order would be practicable, particularly having regard to the state of his health at that time, and any sensible judgment about the state of his health in the future. If that time were to arise then at that stage the Industrial Tribunal might consider whether, purely for the purpose of considering re-instatement, the School should be joined if they wished to make separate representations about the practicability of the Appellant resuming a teaching position. At this stage, we can see no harm in the School not being joined.

We were told by Counsel for the School, and we accept, that the two posts referred to are not capable of being separated. It is one position with two component parts. A clinical part and teaching part, and they are not capable of being separated. There cannot therefore be any question of the Appellant being re-instated into one part of the single post and not the other. Were the stage to be reached where re-instatement was to be considered by the Industrial Tribunal, it may be that the Health Authority would be able on its own to deal with that matter, without the necessity for the School being joined, because, in reality, they would wish to consult with the School before accepting or not accepting any recommendation that might be made by an Industrial Tribunal.

However that may be, we must look at the position as it is today. At present we are of the view that on balance the Appellant would suffer little or any prejudice were the appeal against the Industrial Tribunal decision to be refused.

We now turn to the Industrial Tribunal decision itself and to the attack upon it. We think, with respect, that Counsel for the Appellant has put the case too high. A mistake may be made when an erroneous omission occurs just as when an act is erroneously done. But we do not read the Industrial Tribunal as saying, because there was an omission there cannot be a mistake. Rather we think that the Industrial Tribunal were saying that the non-joinder of the School was not an oversight in the sense of somebody overlooking the possibility, but rather that a view was taken, as to the legal position, namely that there was one employment, and the Authority were the employer (as per the Appellants affidavit) and that that view has now changed. In that sense there has been no in-advertence, rather a change of advice.

We do not consider that it is arguable that the Industrial Tribunal has mis-directed itself as to the factors to be taken into account on the question of prejudice. As has been submitted to us, a tribunal is required to have regard to all the circumstances of the case, and in particular, to the prejudice consequential upon them taking one decision or the other.

First, it seems to us, not to be irrelevant that the Appellant might have a valid claim against his advisors or that he was in receipt of legal advice. A tribunal would be fully justified in taking, in our view, a tougher stance against a represented litigant than an unrepresented one. Both because the representative can readily be assumed to know the law and procedure, and because the litigant who has been let down by a representative may have a remedy over against him.

Second, it seems to us, that the question of delay is not irrelevant and may be taken into account by the Industrial Tribunal although perhaps in this case it will have had only a relatively little weight. It seems to us, that the Tribunal was entitled to reach the conclusion that the School were lulled into a false sense of security by the activities of Dr Whitelaw and his advisors in the way they were handling the matter between 1993 and the summer of 1994. And it does seem to us, that until it was made plain to the School by Counsel on behalf of Dr Whitelaw that there would be no double claim, that is no two claims for compensation, the School were entitled to be apprehensive, that it too would face a claim for compensation in addition to the Authority in the sum of £11,000.00.

In these circumstances it does not seem to us that the Industrial Tribunal has taken into account matters that it ought not to have taken into account or given them any undue weight, although it seems to us clear, that the weight to be given to any factor is not a matter which raises a point of law falling for us consider.

As to the suggestion that the decision of the Industrial Tribunal was perverse, when weighing the obvious prejudice to the Appellant against the lack of any real prejudice to the School, we would simply say, that we do not agree. It seems to us that the Tribunal were entitled to arrive at the conclusion they did on the basis on which they did. But having regard to the additional matters which we raised in argument and which we have dealt in this judgment, it seems to us plain that the decision of the Industrial Tribunal was eminently sensible and correct. Accordingly this appeal will be dismissed.