Boxall v Prescription Pricing Authority [1995] UKEAT 36_95_0706

EAT
Boxall v Prescription Pricing Authority
[1995] UKEAT 36_95_0706 · 1995-06-07

JUDGE HULL QC:

This is an appeal which is in our list under our Practice Direction to see whether we can discover, with the aid of Mr Boxall, who is the husband of the Appellant, any fairly arguable point of law on which the appeal can properly proceed to a hearing with both sides represented.Mrs Boxall was employed as a Data Entry Operator, as it is called. The Respondents are the Prescription Pricing Authority, an organisation which is part of the National Health Service. She was employed in one of a number of branches of the authority at Durham. The centre of the authority is at Newcastle. She appeals to us from a decision of the Industrial Tribunal sitting at Newcastle, under the chairmanship of Mr Hardwick. That Tribunal dismissed her complaint of unfair dismissal after a hearing which lasted three days on 17, 18 and 19 October 1994.Mrs Boxall was represented before the Industrial Tribunal by her husband, Mr Boxall. He acted as her advocate, so far as he could. He is not, of course, a professional advocate. He acted on her behalf throughout and he acts, as I say, on this appeal to us and we heard him today. He has put the matters which he wants us to consider.Mrs Boxall's employment with the Respondents began on 1 February 1978 and in 1985 she had, apparently, 33 days absence; and then in September 1986 she took maternity leave. She was away from September 1986 and in fact she never returned to work. On 16 March 1987 she would have been expected to return to work after her maternity leave and, indeed, was expected to return, her employers having apparently taken the view when she came in (I think to collect her pay or something like that) that she seemed very healthy. But in fact she did not return to work and she was, it appears, unwell.The matter was looked into, of course, and there was a suggestion that she should take early retirement on the ground of ill-health. She is a lady who was born in August 1959 so she was at the onset of this illness only about 27 or 28 years old; and so it was a truly striking thing. We do not know anything about the medical situation, except that it had something to do with her back and it was something which required the attention of various consultant medical men who treated and examined her. She continued to be employed although not, of course, at work and we are told she was not paid after a little while. She continued to be employed until 20 November 1990.There was a letter of dismissal written on 28 August 1990 giving her notice and her employment finally ended on 20 November 1990 by which time, of course, she had been away from work ill for more than three years, something like three and a half years and at no time had she been able to return to her work. She issued these proceedings in the Industrial Tribunal on 14 February 1991 and (as I say) there followed the hearing.When we look at the decision of the Industrial Tribunal, reached after this long hearing of three days before them, they set out many of the facts. We do not need to go all through them. They recite various successful and unsuccessful attempts to obtain reports on her. A number of doctors and consultant medical men, orthopaedic surgeons (I think) reported on her and it was suggested by her employers, the Authority, that she might be qualified to retire on health grounds. For example in paragraph 6:
"6 The independent medical report was carried out by Dr Jachuck who reported to Miss Taylor [that was the employer's representative] that it was unlikely that the applicant would return to work in the near future, and that if and when she resumed her work she would find it difficult to sit, stand or walk for a long time and that it would not be advisable for her to undertake duties involving bending and lifting. He concluded by stating that the applicant's request for retirement on health grounds was justifiable and that he was happy to recommend the suggestion to her General Practitioner if the respondents were agreeable. .... [And then a little later they record that] Miss Taylor provided estimated figures for a pension should the applicant be accepted by the Superannuation [Agency] for ill-health retirement. On 7 October 1987 the applicant formally applied for early retirement on grounds of ill-health. This application was rejected .... by the Authority's Medical Advisor [the Agency's apparently]. We heard in evidence that the Superannuation Authority was a totally separate organisation from the respondent and that the respondent had no ability to influence its decisions on incapacity retirement."
One of Mr Boxall's complaints, on behalf of his wife, was and is that in fact the application was not supported properly or at all by the employers, that is to say the Prescription Pricing Authority; and it was not until after she had actually been dismissed that they began to support it. That appears not to be supported by the facts, but we say no more about it for reasons which will become obvious.They then go through the history of the many enquiries and investigations which were made, not all of them successful, during the period before she was finally dismissed. They record that there were at least four applications for incapacity retirement which were refused by the Pensions Agency or Superannuation Agency (whatever one likes to call them) and they record that in certain cases, the Agency having taken the view that she was not qualified for early retirement, further attempts to see her on behalf of the Agency, were unsuccessful and in those circumstances the Agency adhered to its view. They say that, among many other things:
"Dr Jachuck reported on 17 May 1990 that it was unlikely that her sickness absence pattern would alter significantly in the next 2 years."
And then in paragraph 10 they find as follows:
"10 Mr Bray and Mrs Young from the Personnel Department visited the applicant at her home on 7 August 1990 to discuss Dr Jachuck's report and her future employment. Her husband who was present spoke mainly for the applicant. Mr Bray stated that he needed to recommend to the Chief Executive what should now occur. As he saw it there were 3 alternatives: (a) a return to work (b) a resignation by the applicant (c) or that she was dismissed.
As regards a return to work it was stated on behalf of the applicant that she had a permanent disability and would never be able to resume her job on Data-entry. She was not interested in resigning as she was still seeking ill-health retirement. Mr Boxall stated that in his view dismissal was not appropriate as it could be related to his wife's earlier pregnancy. The majority of the discussion centred around the applicant's ill-health retirement application and that she had initially been led to believe that it was a formality by Miss Taylor."So that was what they found happened on that occasion. That is the subject of one of Mr Boxall's most serious complaints to us about the findings of this Tribunal. He says that his wife did not say that she would never be able to resume her job, and he says that the Tribunal therefore accepted the evidence which they should not have done of Mr Bray and Mrs Young. He says that they should have heard him and they did not.In other words, he says to us that there the Tribunal were not entitled to reach the finding which they did; but it appears to us that this was a matter of fact which the Tribunal were entitled to find, and did find, having heard the evidence which was called before them; and that they were entitled to find what they did. It is apparently entirely consistent with the rest of the evidence.Thereafter, there were further comings and goings and among other things, they record that it was said, and I think accepted by the Tribunal, that dismissal, if dismissal was decided upon, would not affect the applicant's ability to pursue her application for early retirement with the Pensions Agency if she could persuade them that she was, in fact, genuinely prevented from earning her living.There it was. They record, after hearing the matter, that it was decided that she should be dismissed and she was duly dismissed. She appealed and although the appeal was delayed, eventually the appeal was dismissed. The Authority was not prepared to review their decision. She did not attend the appeal hearing but her written representations were put in by her husband.So that was the situation. The Respondents had dismissed her and the Industrial Tribunal had, of course, to enquire first of all into the reason for the dismissal and, secondly, whether the employers had acted reasonably and fairly in treating that as a reason for dismissal. The facts are truly arresting. As I say, she had been away from work for more than three years at the time of this dismissal and if witnesses were to be believed, and the Industrial Tribunal did believe them, she roundly declared to her employers that she would never be fit to return to work.They record among other things that the work that she was doing was the lightest work available in the department. Mr Boxall says that that was the evidence of her manager, Mr Nevard. They had to decide whether they accepted that evidence. We have not seen the evidence. They reached their conclusions on the evidence and they held that it was the lightest possible work, and that there was no lighter work that could be found for her. And they had to consider whether the employers, in all the circumstances, having obtained many medical reports and looked into it over this long period of time, acted fairly; acted reasonably in treating it as a reason for dismissal.A large part of the delay was caused, as the Industrial Tribunal record, by the fact that Mrs Boxall was endeavouring to obtain retirement on the ground of sickness, on the basis that she would obtain a pension; and that was unsuccessful. That was essentially an irrelevance or likely to be an irrelevance to the Industrial Tribunal's enquiry. What they had to decide was whether the employers had acted reasonably or unreasonably. The fact that Mrs Boxall might well or might well not obtain retirement on the grounds of unfitness was, as the Tribunal found, irrelevant to those considerations. She would in fact be able to pursue her claim for permanent unfitness if she wished to do so. They would concern themselves therefore with the question of the fairness or the unfairness of the dismissal, in the sense which I have indicated. After talking about seeking medical opinion and consultation with the employee they say in paragraph 18:
"18 .... It was apparent to the Tribunal that the real complaint of the applicant was not regarding her actual dismissal but the refusal of the Superannuation Authority to afford her retirement and hence a pension on health grounds. ...."
Mr Boxall complained to us repeatedly today that in fact they should not have kept talking about the Superannuation Authority; it was either an agency or some separate department of the National Health Service, but it was not an authority and there they were continually confusing the issue.It does not appear to us that this misnomer (if that is what it is) is confusing the issue and it must have been quite clear to everybody, we think, who read this decision, that there was no confusion although they may have used an inappropriate name. They go on:
"In answer to the Chairman's question as to why she considered she was unfairly dismissed the applicant said `The Authority should have retired me due to ill-health on the advice of its own medical advisors'. The applicant's representative seemed to focus his endeavours on the alleged iniquities or unfairness of the Superannuation Authority and to lose sight of the fact that what the Tribunal has to consider was whether the respondent, a separate organisation from the Superannuation Authority, had fairly or unfairly dismissed the applicant as opposed to whether the Superannuation Authority had fairly or unfairly declined to accept her application for early retirement. The applicant's representative referred to the ill-health procedures and in particular clause 4(3). This clause stated that where there was doubt as to the fitness of an employee to return to work it would be appropriate to take medical advice. It also stated that an employee should be given the opportunity to gain his own medical opinion should he wish. The paragraph concluded by stating that any dismissal without medical advice would be unfair. The applicant's representative seemed to argue that because the applicant's medical opinion had not been considered at the time of her dismissal it was unfair. However, a proper reading of that section seems to us to mean that a decision to dismiss without taking medical advice ie advice on the prospect of a return to work would tend to be unfair. As far as we were concerned the employers had done this on a number of occasions. The applicant did not ask the respondent to allow her to provide her own medical opinion at the time dismissal was contemplated. Mrs Cameron in evidence said that had the applicant so wished she would have deferred any decision to allow the applicant to provide the medical opinion."
Mr Boxall invokes the case of Polkey and says it is quite irrelevant for them to consider what the employers might or might not have done. What the Tribunal have to consider is what they did do.It seems to us that in the context that is quite an unjustified and, indeed, irrelevant objection. The fact is that for three and a half years, these employers had been obtaining the, no doubt expensive, opinions of various consultants and other medical men which had all been one way; and if they accepted the evidence which they did, this lady on their visit to her stated that she would never be able to resume her job.In those circumstances, to say to her "Well we cannot act until you produce a medical opinion on your own behalf to confirm our own medical opinions" would seem to be verging on cruelty. They had now been enquiring for more than three years. The medical evidence was not only uncontested but enthusiastically supported by the applicant herself, if the evidence which they accepted was correct - and they did accept that evidence.It seems to us to be a completely pedantic objection that they had not given her an opportunity. She had not sought to avail herself of any opportunity and in the circumstances it would have been fantastic to suppose that this lady actually wished to submit medical evidence to them, and in some way or other had been prevented for three years from obtaining an independent medical opinion.Then the Tribunal go on:
"19 The respondent's Solicitor submitted that the only way the superannuation issue could have any possible relevance was that if it could be shown that the respondent had some machiavellian ploy to dismiss the applicant prematurely to prevent the possibility of her obtaining ill-health incapacity retirement. However he stated that he did not necessarily accept that argument. It was abundantly clear to the Tribunal from the evidence that the respondents management were wholly receptive and supportive to the applicant obtaining ill-health incapacity retirement, and would have been prepared to delay any action on dismissal if it could have been shown that further medical opinion would assist. In any event the dismissal had no effect on the applicant's ability to pursue her claim for an incapacity pension. She was dismissed for continuing incapacity and it was noticeable to us that both the applicant and her representative would have been extremely happy for her to have been dismissed for permanent incapacity. This subtle changing of the wording apparently may well have assisted her case for incapacity retirement pension.
20 The respondent carried out full and proper medical investigation into the circumstances and consulted fully with the applicant. We consider they acted reasonably or indeed more than reasonably. They bent over backwards to accommodate an employee who had an appalling attendance record. The decision to dismiss the applicant was within the range of reasonable responses a reasonable employer might have adopted in the circumstances. The applicant's complaint was all about her failure to achieve a retirement pension on medical grounds. That issue fell wholly under the auspices of the National Health Services Pensions Agency and had nothing to do with the respondent. We find this claim to be wholly unmeritorious and misconceived and we unhesitatingly and unreservedly dismiss it."There the Tribunal on the face of it have addressed their minds to the evidence which they heard and made their findings on that; and to the test which they have to apply when unfair dismissal is alleged. They have reached conclusions on that which appear to be entirely supported by the evidence and we ask ourselves therefore "What is wrong in law with that decision?". I have mentioned some of the submissions which were made to us and among other things Mr Boxall has put to us today what appears to be an entirely insupportable case, that the employers failed to consider the possibility of lighter work. I say that that is an impossible submission because the Tribunal found as a fact that there was no lighter work.I asked Mr Boxall whether Mrs Boxall had ever said to the Tribunal "So far from being unable to return for two years or more, or not in the foreseeable future, so far from being permanently unfit, I could return, I think, to lighter work. There is some lighter work. I believe it is so and so. Can I come back and have a go at that work?" and Mr Boxall told us as follows. He says Mrs Boxall never told the Industrial Tribunal that there was lighter work that she could return to, or lighter work that she wanted to do; and if she never told the Industrial Tribunal presumably she never told her employers.It does seem, with respect to Mr Boxall, quite impossible to run that in tandem with a suggestion that this lady was well-qualified to retire on the basis of permanent disability and was wrongly being denied an opportunity to do so.He makes other complaints. I hope it is fair to say that all these complaints are complaints on questions of fact and so long as the Industrial Tribunal proceeded fairly, as they appear to have done, their decisions on the facts are for them and we have no right whatever to reconsider those matters.It appears to us that the main part of this appeal does not disclose any fairly arguable point of law. There is nothing here on the face of this decision which suggests any departure from law at all. Mr Boxall does make a further complaint about the decision. He complains that they dismissed improperly and without considering the authorities an application made for the reason for the dismissal. On the face of it that appears to be a purely vexatious application.It was perfectly obvious, and everybody had been enquiring into it for more than three years, that Mrs Boxall had been dismissed because of the very unfortunate fact that she was suffering from what appeared to be a permanent and serious incapacity. That was how it was seen by the employers. At any rate, she was quite unable to come back to work. So to ask for the reasons for the dismissal, in those circumstances, would on the face of it be unreasonable. But so far from that, the employers had of course stated the grounds in their Notice of Appearance and the Industrial Tribunal deal with it as follows. They say:
"15 .... The applicant had made the request for written reasons by a letter dated 27 August 1991. [That of course is something like nine months after her dismissal] notwithstanding that she had been given a letter from Mr Bray on 7 September 1990 setting out very clear grounds for the termination of her employment in that she was continuously absent from her place of work and was unlikely to become fit to return to work in the foreseeable future. The applicant's employment terminated on 20 November 1990 and the written request was made on 27 August 1991 with leave granted to amend the Originating Application on 6 June 1992. The application under Section 53 is clearly well beyond the prescribed time limits under subsection (5) of Section 53. No evidence was adduced to state that it was not reasonably practicable for the complaint to have been presented within the appropriate time although the applicant's representative in evidence stated whilst he was aware of the 3 month time limit for presenting a complaint of unfair dismissal he was unaware of the time limit under Section 53. In any event we see from the correspondence presented to the Tribunal that at that stage the applicant's representative was essentially endeavouring to conduct the appeal by correspondence. We are of the view that we have no jurisdiction to hear this complaint because it is outside the prescribed time limit and we have heard nothing which persuades us that it was not reasonably practicable for the application to have been so made."
When one looks at Section 53 it provides that a request may be made and that it shall be answered by the employer and under subsection (5):
"(5) An industrial tribunal shall not entertain a complaint under this section relating to the reasons for a dismissal unless it is presented to the tribunal at such a time that the tribunal would, in accordance with section 67(2) or (4), entertain a complaint of unfair dismissal in respect of that dismissal presented at the same time."
In other words, within three months of the effective date of termination, or if it was not reasonably practicable to present the complaint within that time, so soon as is reasonable thereafter.This Tribunal was therefore prohibited by Parliament from entertaining the application unless it could be shown that it was not reasonably practicable to present the complaint within time. And they say, that they heard no evidence that it was not reasonably practicable. Mr Boxall has told us today, as he told the Tribunal, that he was not aware of these technical matters, but there it is. If he accepts the burden of representing somebody he has to make himself aware of them and his client will suffer if he does not. But so far from that sort of ground, so far from saying that it was quite without merit, the Tribunal simply said that they were without jurisdiction.It appears to us, not merely that having heard no evidence that it was not reasonably practicable to present it in time; not merely that they were right about that; but that they had, as they say, "no jurisdiction" and in those circumstances, they were not only entitled but bound to dismiss that part of the application.As we say, the Industrial Tribunal were concerned to look at the reason and whether that reason was treated reasonably by the employers as a reason for dismissal. They appear to have done that. Our jurisdiction is a much more limited one. It is to enquire whether there is any apparent error of law in the decision of the Industrial Tribunal. That includes, of course, such matters as misreception of evidence or errors of law on the face of their decision or any unfairness. Nothing of that sort appears to us to be alleged here and in the circumstances, it appears to us that this is an appeal which cannot proceed. It is quite clear to us that if it went to all the expense and delay that would be involved in an appeal, it would be bound to fail and, indeed, it might justly be said that any such appeal was indeed vexatious and that Mrs Boxall's troubles would be added to by an application for costs against her.In the circumstances, we say that the appeal has to be dismissed today.