Ludford v Connex South Eastern Ltd [1997] UKEAT 982_95_2201

EAT
Ludford v Connex South Eastern Ltd
[1997] UKEAT 982_95_2201 · 1997-01-22

JUDGE COLIN SMITH QC :

There is an application this morning by Mr Ludford, who appears in person, and is the appellant in this appeal, that we should admit into evidence what is placed before us as being and we are prepared to accept conditionally that it is indeed:(1) what is headed a "Transcript of Special Medical Interview held on 16th December 1994" and that is a two page document which purports to be a tape recording on a Dictaphone, under difficult conditions of a medical examination or interview between Mr Ludford and Dr Cooper, described as being a British Rail Medical Officer on 16th December 1994. In that document which we have looked at, there is quite a lengthy description of statements being made by Mr Ludford relating to his medical ailments of numerous different kinds, and the responses of the doctor in relation to those matters. Also there are comments made in the course of the transcript on the document before us by Mr Ludford as to the doctor's responses to what Mr Ludford was saying to the doctor about his many different medical ailments.(2) The second document is described as "Transcript of Dictaphone Recording of Final Appeal Interview held March 3rd 1995 Friars Bridge Court". Again that is a tape of the final appeal interview relating to the last stage of the performance procedure which the employers held.Neither of these documents was placed in front of the Industrial Tribunal. The Industrial Tribunal certainly had some evidence from the doctor before it in the documents. They also had notes of the appeal interview. Of course they based their findings on the evidence that they had in front of them at that time.There is no doubt, we accept, that certainly the first of the two documents may be relevant to the decision of the Industrial Tribunal. But in our judgment the matter cannot simply be dealt with on that basis. Because what happened was that after the Industrial Tribunal decision was handed down and sent to the parties on 27th July, there followed a request for a review of that decision, which we find at page 12 in the bundle, in the nature of an application, amongst other things, that these documents should be admitted. Those were not the only matters raised on the review, but included amongst the fairly substantial matters raised at the review was an application for this evidence, that is before us this morning, to be admitted on a review. The Industrial Tribunal Chairman gave a decision on that which was entered in the Register on 21st September 1995 when he decided that they would refuse the applicant's application for a review. The Chairman's reasons were:
" The purpose of a review is not to consider evidence which was available but not presented at the hearing. Therefore much of the evidence now placed before me cannot be admitted."
The Chairman rejected the application for a review. There has been no appeal against that decision at all.It is in those circumstances that we have had to remind ourselves of the legal test for the admissibility of fresh evidence before the Employment Appeal Tribunal. We have looked at Harvey at T1586, and we note that the Employment Appeal Tribunal has a discretion to admit further evidence in limited circumstances.

(b) :

"It is only in exceptional cases that fresh evidence will be admitted in the EAT. [ Then the test is laid down. ] Thus the party seeking to introduce the new evidence must show (i) that the evidence could not have been obtained with reasonable diligence for use at the tribunal; (ii) that not only must it be relevant, but that it would probably have an important influence on the result of the case, even though it need not be decisive; and (iii) that it is apparently credible , though it need not be incontrovertible."
Now we conclude here that on the application of the reasonable diligence test, this evidence could and should have been obtained and placed before the Industrial Tribunal.Mr Ludford has said to us today that the reason it was not was because he was not happy with his representation at the time. He was not happy with the way Mr Allen was representing him, and also that there were problems in transcribing the material. We do not accept those explanations in all the circumstances as amounting to any good reason why the evidence could not have been obtained with reasonable diligence for use at the tribunal.Accordingly we must exercise our discretion here against the admission of these documents in evidence. We are not prepared to look further at these documents. We will of course look at all the evidence that was in front of the Industrial Tribunal, and we will of course listen to the arguments that are presented to us by Mr Ludford in relation to the substance of his appeal.

JUDGE COLIN SMITH QC :

This is an appeal by the appellant employee, Mr Raymond Ludford, against the decision of an Industrial Tribunal sitting at London (South) on 14th July 1995 of which full reasons were sent to the parties on 27th July 1995, when the Industrial Tribunal decided that the appellant had not been unfairly dismissed from his employment with Connex (South Eastern) Ltd as they are now known.The appellant had been employed for many years, that is since November 1978 until his dismissal on 15th February 1995. In recent years he had worked as a supervisor at the telephone enquiry bureau at Waterloo Station. As appears from the findings of the Industrial Tribunal, to which reference should be made for the more precise details of the matter, the eventual dismissal of the appellant arose out of his alleged failure to perform at the standard required by the respondents with regard to a system known as the "busy out" system. The detailed facts as found by the Industrial Tribunal in this regard are set out in paragraph 3 of the decision. Putting it very shortly, it appears that management were anxious to reduce the percentage time when members or employees had switched themselves out of the system and were not available to take calls from the general public. ["The busy out time"]. Negotiations with the unions took place in which management had suggested the busy out time be reduced to 20%, whilst the union argued for 25% to 30%. After those negotiations had taken place, ultimately the management imposed 20%.The Industrial Tribunal found as a fact that having imposed the 20% busy out limit, management then proceeded to introduce something called "the full performance procedure" which was a procedure amounting to a cross between a disciplinary procedure on the one hand, and what the Industrial Tribunal called a sickness ability procedure on the other. It is apparent from the respondent's documentation relating to this procedure, which was before the Industrial Tribunal and which we have therefore looked at, that the procedure was predicated on the basis that there had been inability to perform to the required standard. It is apparent from the procedure that it provided for warning letters to be sent culminating, if no improvement can be expected, in dismissal with contractual notice. It was this procedure which, as the Industrial Tribunal found, was applied in the appellant's case. The procedure followed various stages, and in the appellant's case it appears that stage 1 was in or about March 1994, and stage 2 in or about June 1994. Stage 3 began at a meeting in December 1994. Stage 3 was reconvened on 15th February 1995, at which a decision was taken that the appellant should be dismissed on the grounds of unsatisfactory job performance. At that last meeting the appellant was given the chance in the presence of his representative, Mr Tracey, who was allowed to be present as an observer only, to address Mr Waters, the relevant manager. There followed an appeal held before Mr Paine, the appeals officer, at which the appellant was represented by a TSSA representative, and who on this occasion was allowed to appear as an advocate. The Industrial Tribunal found that the appeal consisted of a review of all the papers leading to the dismissal, together with the hearing of evidence and consideration of a submission made by the appellant's representative, after which the appeal was dismissed.In paragraph 4, and it seems paragraph 6 of its decision, the Industrial Tribunal considered and rejected three arguments put forward by the appellant who was then acting in person. First, they rejected the argument that the busy out measurement was unfair, holding that even if there were some inherent inconsistencies and inaccuracies in the system, it was inconceivable that they would operate unfairly to the appellant over a twelve-month period. Next the Industrial Tribunal considered his submission made to them that the appellant should have been dealt with under an incapability procedure, rather than under the poor performance procedure, since, had he been so dealt with, there would have been an obligation upon the respondents to seek alternative employment for him, and in that way he would or might have avoided dismissal. The Industrial Tribunal rejected this argument on two grounds,(a) because the appellant had not raised the argument during the first two meetings; and(b) because it held that the respondents were entitled to accept the doctor's certificate which they had obtained that he was fit for the job when combined with the appellant's admission that he was "technically fit for the job". We shall have to return to this conclusion of the Industrial Tribunal below. Thirdly, the Industrial Tribunal rejected an argument that the procedure was flawed and unfair in that the appellant's representative was merely an observer at the hearing at which the dismissal took place and not allowed to act as an advocate, and that there was no representation at the earlier stages. The Industrial Tribunal decided that this was not a fatal flaw in the respondents' procedure, and went on to hold that that even if they were wrong in that, they would have held that such defect was cured by the appeal hearing. So it was that the Industrial Tribunal held on application of section 57(3) that the dismissal was fair.Before we consider the submissions made to us, we regard it as important to summarise the state of the evidence relating to the appellant's medical condition which was before the Industrial Tribunal. There can be no doubt that on the findings of the Industrial Tribunal, which we hold we cannot go behind, it was during the first part of the stage 3 procedure in December 1994 that the appellant raised for the first time a number of allegedly serious and chronic medical conditions as together constituting a major factor, if not the major factor, for his failure to perform as required by the respondents. Most of these are in fact conveniently set out in the respondents' letter at page 25 of the respondents' bundle namely:
"1. Throat problem that has existed for 12 of years.
2. Hearing (Right Ear).3. Vision.4. Colitis or Irritable Bowel Syndrome.5. Asthma.6. Allergies."As a consequence of this evidence and as appears from the documentation, the respondents asked their Chief Medical Officer to examine the appellant to see whether he was fit to do his current work. An examination followed on 16th January 1995, after which a senior medical officer expressed the conclusion that the appellant was fit to continue with his current job. Despite this, at the hearing on 15th February 1995, the appellant reiterated that the principal reason for his failure to achieve the performance targets was due to his chronic medical condition, stating in particular that his allergy condition had escalated and that the hearing in his right ear had deteriorated significantly. At no time did the appellant produce any medical evidence in support of his contentions.It is against that background that we have to consider whether there are any grounds for upsetting this decision of the Industrial Tribunal. We should say that we have carefully considered everything contained in Mr Ludford's skeleton argument. We have of course taken those matters into account, and we have also considered the grounds set out in the Notice of Appeal on his behalf.It appeared to us that Mr Ludford's first real complaint was that the employers had no contractual right at all to impose the new busy out percentage. He submitted that it was a breach of contract so to do, or at least so unfair as to have the result that to dismiss somebody for failing to comply with it must also be unfair. To the extent that it was raised before them, the Industrial Tribunal appears to us to have dealt with this argument in paragraph 4 of its decision, and, we infer, paragraph 6 of its decision. In our judgment the Industrial Tribunal were entitled to conclude as they did that both the imposition of the busy out measurement and its application to supervisors were decisions within the remit of management and which management were entitled to take. We cannot possibly say that the Industrial Tribunal erred in this respect, or that there was anything unfair about management's conclusion that over a 12 month period the appellant had failed to measure up to those performance rates. Accordingly we must reject this ground of appeal.Next we turn to consider Mr Ludford's submission to us that the Industrial Tribunal wrongly failed to hold that the procedure to which he was subjected was totally unfair. He submitted that the Industrial Tribunal should have held that he was entitled to the benefit of the contractual rights conferred upon him by the agreed disciplinary procedure which gave him, we assume, much greater rights with regard to representation, and much greater scope to challenge in detail the employer's case against him. It is not at all clear to us that this argument was properly canvassed at all before the Industrial Tribunal, but in our judgment it is misconceived in that it is plain from a fair reading of the papers that the respondents here were not proceeding against the appellant on the ground of misconduct at all, but rather on the ground of failure to measure up to performance requirements reasonably imposed by the respondents; that is for reasons relating to the capability of Mr Ludford to perform to the necessary standard, rather than for reasons relating to conduct. We should mention that in the course of considering this submission made by Mr Ludford, we have also carefully considered what is, in our judgment, a related submission to be found in the Notice of Appeal, namely whether the Industrial Tribunal were at fault in failing to find with sufficient precision what the precise reason for the dismissal was. This was certainly not put in the forefront of Mr Ludford's submissions to us today, but we have considered it nevertheless. We have noted particularly and taken into account the obiter dictum in the Court of Appeal decision of British Rail Board v Jackson [1994] IRLR 235 at page 238, paragraph 23, of the judgment of Waite LJ that the better practice is for an Industrial Tribunal to make a finding specifying exactly what the reason for the dismissal was. However, as Waite LJ pointed out there is no express requirement so to do. In our judgment here it is clear that the Industrial Tribunal were placing the reason for dismissal as being related to lack of performance due to incapability rather than conduct. In our judgment it is apparent that the Industrial Tribunal sufficiently identified the reason for the dismissal so as to enable them to deal adequately with the question of whether the reason was sufficient to justify dismissal and, crucially, with the question whether in all the circumstances it was reasonable for the respondents to have dismissed the appellant by reference to the test laid down by section 57(3) of the 1978 Act, now section 98(2) of the 1996 Act. Accordingly we must reject the conclusion that the Industrial Tribunal did not adequately identify the reason for the dismissal, and also the submission that they should have held that the appellant was entitled to the agreed disciplinary procedure.We turn next to consider what we have found to be the most difficult question on this appeal, which is whether the Industrial Tribunal were justified in concluding that the respondents acted reasonably in the steps they took with regard to the information they had in front of them relating to the appellant's alleged medical condition. The Industrial Tribunal dealt with the matter in this way:
"... Additionally, or alternatively, Mr Ludford argued that he was not fit to do the work and therefore should have been dealt with under an incapability procedure, the principal difference being that although he would have been removed from work in the telephone enquiry division, there would have been an obligation upon his employers at least to seek for alternative work for him and therefore he could have avoided dismissal. We examined that argument closely. We found it difficult because Mr Ludford had not raised it at the first two meetings and because upon his own admission, he had told the doctor that he was in his phrase "technically fit for the job" and therefore the employers faced with a doctors certificate that he was fit, could scarcely be expected to make a finding that he was not fit for the job. Had they done that, his case against them here might have been unanswerable. ..."
The Industrial Tribunal went on to conclude as in paragraph 7:
"7. We have listened carefully to all those arguments and we have come to the conclusion that this dismissal was fair. ..."
We have carefully considered whether the Industrial Tribunal should have concluded that the respondents acted unfairly and outside the reasonable responses of a reasonable employer in the way in which they dealt with this aspect of the matter. We have reminded ourselves that in the context of dismissal on the grounds of ill-health, it has been held that there is a duty on the employer to consult with the employee and to act sympathetically in accordance with the criteria laid down in East Lindsey District Council v Daubney [1977] ICR 566 as recently applied in Mitchell v Arkwood Plastics (Engineering) Ltd [1993] ICR 471 . However, in our judgment the position before the Industrial Tribunal on the evidence here was different from that considered in such cases. On the evidence before the Industrial Tribunal, it was only at the stage 3 meeting in December 1994 that the appellant raised his medical condition as an explanation for his failure to measure up to the performance required by respondents. It is apparent from documents before the Industrial Tribunal, which we have referred to earlier particularly at pages 25, 28 and 29 of the respondents' bundle (R1), that the respondents at once referred the list of medical conditions mentioned by the appellant to their Chief Medical Officer, and that a senior medical officer thereupon reported to the respondents that the appellant was fit to continue with his current job. In addition, there was evidence before the Industrial Tribunal that the appellant had told the doctor that he was "technically fit for the job". In those circumstances, in our judgment, it was open to the Industrial Tribunal, applying section 57(3), to conclude that the employers acted reasonably in not enquiring further into the medical aspects of the matter before proceeding to dismiss. We cannot say that this was a decision which the Industrial Tribunal were not entitled to reach, even if we felt or at least some of us felt that we might have reached a different conclusion. Accordingly we must dismiss this ground of appeal.We have next considered whether the Industrial Tribunal erred in holding that the procedure by which the appellant was judged was unfair, because it did not allow representation by advocate until the appeal stage, and before that, in effect, did not allow representation at all. There is no doubt that Mr Ludford feels very strongly indeed that this was grossly unfair. He contrasted this situation with the much more generous rights to representation accorded to an employee under the agreed disciplinary procedure. However, here again, in our judgment, it must be very much a matter for the Industrial Tribunal to decide whether in any given case shortcomings in the procedure amount to a failure to act reasonably within section 57(3). Here the Industrial Tribunal correctly cited Ceylon University v Fernando [1961] 1 WLR 223 , and in our judgment applied the correct test. Here again we do not consider that it can be said that they erred in law, and in any event we consider that they were entitled to conclude in all the circumstances here in the alternative, that any defect on the original hearing was cured on appeal.We unanimously consider that in some respects at least this is a sad case and we have sympathy for the position of the appellant. He was a long-standing employee and lost his job in unfortunate circumstances. However, in our judgment, there is no error of law, let alone perversity in the Industrial Tribunal decision. Accordingly, for those reasons, the appeal must be dismissed.