Cavannah v Borough Of Blackburn [1998] UKEAT 110_98_1603

EAT

Cavannah v Borough Of Blackburn

[1998] UKEAT 110_98_1603 · 1998-03-16

MR JUSTICE BELL : This is an ex-parte preliminary hearing in respect of an appeal by Miss Cavannah against the decision of the Chairman of the Industrial Tribunal at Manchester, entered in the register on 21 November 1997.

The history of Miss Cavannah's Industrial Tribunal case extends back nearly three years. By an Originating Application dated 8 April 1995 she presented a complaint of unfair dismissal by the Respondent Authority. The Industrial Tribunal heard this matter on 15 August, 2 October and 3 October 1995 and by a decision entered in the register on 4 January 1996, it unanimously decided that Miss Cavannah had been fairly dismissed. It decided that the reason for her dismissal was that she had, over a significant period, failed to perform her job in a satisfactory and competent manner and that the Respondent had acted reasonably in treating her lack of capability as a sufficient reason for dismissing her.

One of Miss Cavannah's complaints about her employment was that she suffered feelings of nausea and dizziness as a result of having to spend time working on a computer which incorporated a VDU. The Industrial Tribunal considered the Authority's procedures with regard to that, the Authority's receipt of medical evidence on the topic, and evidence of the Authority's Health and Safety Officer about Miss Cavannah's work and her work station. It referred to numerous counselling interviews. Among other matters it concluded:

"The applicant's explanation and complaints regarding nausea and dizziness had been properly investigated by the respondent and as a result of the information obtained in the course of those investigations the respondent was entitled to conclude that these symptoms were not connected to the system of work which the applicant was required to undertake."

Miss Cavannah sought a review of the Industrial Tribunal's decision which the Chairman refused by a decision entered in the register on 6 February 1996. The reasons for that decision included a reference to the view of the Respondent Authority's Senior Clinical Medical Officer that:

"I do not feel that the computer work or stress is responsible for any of the problems you have mentioned."

The decision on review said that there was no evidence to support Miss Cavannah's assertion that the Respondent had failed to comply with the Health and Safety (Display Screen Equipment) Regulations 1992, or that any failure to do so had any significant affect on the Applicant's performance of her duties.

In September and October 1997 Miss Cavannah sought a further review of the Industrial Tribunal's decision relying on two letters from her general practitioner dated 22 May 1997 and 23 October 1997, which she contended were fresh medical evidence and which we have read.

The Chairman, by the decision now appealed against, refused a review on the grounds that it had no reasonable grounds of success. In his reasons the Chairman said, among other matters:

"... In his first letter her doctor confirms that he examined the applicant on 9 March 1995 (some months prior to the hearing of the applicant's substantive complaint at the Tribunal) when the applicant complained that she was feeling nauseous and suffering from headache attacks which occurred at work. In that letter her doctor states he can find no clinical abnormalities but based on information provided by the applicant about allegedly working for long hours on a computer he concludes that her symptoms were due to the way in which she had been using the computer. In his second letter dated 23 October 1997 her doctor suggests that this conclusion is based on the premise that there is no other medical reason for her symptoms.

I have reservations about the applicant's doctor's view and the way he has reached his conclusion particularly in view of the interval of time that has elapsed between the date of his examination of the applicant and the two letters which are now produced to me. Furthermore, his view does not accord with very convincing and impressive evidence which we received in the course of the substantive hearing from witnesses on behalf of the respondent regarding compliance with all requisite safety regulations in relation to the equipment on which the applicant had been working. ... Moreover, although the applicant had been examined by her doctor some months before the substantive hearing, she has not offered any explanation as to why the evidence from her doctor upon which she is now seeking to rely was not made available to the Tribunal in the course of the substantive hearing nor referred to in the initial application for a review of our Decision contained in the applicant's letter dated 12 January 1996."

The basis of Miss Cavannah's present appeal is set out in her skeleton argument which we have carefully read. It begins with this essential contention:

"The Industrial Tribunal had erred in law in its interpretation that my employer had complied with all requisite safety regulations in relation to the equipment on which I had been working. There were many omissions which were breaches of Health and Safety Legislation and created an unsafe working environment."

Miss Cavannah has enlarged on that today, drawing our attention to particular matters, in the particulars which follow that general statement which we have just quoted in her skeleton argument. Her arguments very largely rehearse a number of alleged breaches of the Regulations. Moreover, she has addressed us on the value of her general practitioner's letters and the need for the Tribunal on considering the application for a review to bear them in mind..

It appears from the decision presently appealed against, the second application for a review, that the Industrial Tribunal did originally consider alleged breaches of the regulations, but whether that is so or not, it is quite clear from the decision that it did consider the safety of the working practices as they applied to Miss Cavannah, and very importantly indeed, of course, whether in any event any of those practices could be related to the physical effects of which Miss Cavannah complained.

It is clear that the Industrial Tribunal accepted the Respondent's evidence about the safety of the working practices and saw no reason why the local Authority should not sensibly follow the medical advice which it had been given that no connection could, in any event, be seen between what Miss Cavannah complained of suffering and her work.

In our view the Chairman was entitled to have reservations about the general practitioner's letters of May and October 1997. Although Miss Cavannah has argued, in effect, that her general practitioner was the one who was most likely to know about what caused the symptoms of which she complains it is quite apparent that those letters lack reason, explanation and medical science, let alone specialised medical science.

This Appeal Tribunal can only entertain an appeal against the Chairman's decision refusing a second review if there is an arguable point of law. There would be an arguable point of law if there was any reason to believe that the Chairman had reached a decision which no Chairman, properly directed, could reasonably reach, or if there was material upon which one could argue that he had taken into account some irrelevant consideration or omitted consideration of some relevant matter, but we see no grounds for any such allegation in this case.

In our judgment the Chairman was entitled to reach the decision which he did in November 1997 for the reasons which he gave. It follows, as we pointed out in the course of Miss Cavannah's submission, that it is not for us to substitute our own judgment whatever that might have been on the material which is before us. The fact is that there is no arguable point of law - we stress point of law - here and this appeal must therefore be dismissed.