Jackson v Department Of Health [1998] UKEAT 1242_97_2307

EAT

Jackson v Department Of Health

[1998] UKEAT 1242_97_2307 · 1998-07-23

MR JUSTICE KIRKWOOD : Mr Mark Jackson appeals from the decision of an Industrial Tribunal at Birmingham dismissing his complaint of victimisation under s. 4 of the Sex Discrimination Act 1975 . The Industrial Tribunal heard the case over five days in May 1997 and gave extended reasons for its decision, in some 16 pages, on 23rd June 1997.

It was Mr Jackson's case that his application for extended special unpaid leave was refused, whereas such applications by other staff had hitherto been allowed, by reason of his having brought and prosecuted proceedings under the Equal Pay Act 1970 . The Industrial Tribunal rejected that case.

Mr Jackson was employed by the Department of Health as a Secure Unit Manger at the Department's Youth Treatment Centre "Glenthorne".

He had been employed there since 1991, though not throughout as a Unit Manager.

There were various grades of staff at Glenthorne. Within each grade, all did the same job. But within each grade there were three different pay scales, depending upon the profession from which the employee had been drawn. The highest pay went to teachers, then nurses, and the lowest to social workers.

Those pay disparities were an historical anomaly which had been a running sore at Glenthorne for many years.

In January 1996 Mr Jackson brought proceedings in the Industrial Tribunal under the Equal Pay Act 1970 . At first proceedings were on his own behalf; later on behalf of other residential Child Care Officers with a social work background.

At some time before that, Mr Jackson had sounded out the manager of Glenthorne, Mr Hess, about the possibility of taking extended special leave. The underlying reason for that was that Mr Jackson wished to read for qualifications in the law. He would need almost two years for that. To partly fund that, Mr Jackson intended to carry forward and accumulate some leave; and to work at child care establishments in the London area.

The Industrial Tribunal found that at the outset Mr Hess supported that plan, and that in past years leave of absence had been granted to all five applicants for leave of absence or a career break for a variety of reasons.

In the early Summer of 1996, Mr Jackson spoke about his proposed application for extended leave to Mr Adams, Director of the Professional Support Unit to the Glenthorne Centre. Mr Adams seemed to give the proposal his tacit blessing if not his outright approval.

Mr Jackson made his formal application for special leave on 17th June 1996.

In Mr Jackson's Equal Pay proceedings, nobody, including Mr Jackson, thought there was much chance of success. There were male and female staff in all of the pay categories and none was dominated by one sex. The Industrial Tribunal suggested that it was self-evident that difference in pay was attributable not to gender difference but to historical pay anomalies and/or a genuine material factor other than sex.

The Equal Pay case was listed for an interlocutory hearing before another Industrial Tribunal on 25th July 1996. All parties confidently expected that it would be dismissed. It was not. It was to go to a full hearing.

Mr Jackson reported his delight at the outcome to Mr Hess. Later that same day, Mr Hess handed to him a letter rejecting Mr Jackson's application for extended special leave.

Not surprisingly, Mr Jackson put two and two together and concluded that he had been refused leave because of his Equal Pay proceedings, now proceeding to a full hearing.

The Industrial Tribunal put it in this way at paragraph 3(g):

"On the first morning of the hearing the thrust of Mr Jackson's case was quite simply that everything had been going swimmingly until the 25 July when for the first time Mr Hess realised that the complaint under the Equal Pay Act might actually succeed. His immediate response was to deny Mr Jackson the leave, which up till that moment he had led him to believe was virtually his. ..."

But the Industrial Tribunal found that that case was fatally flawed by the existence of documents that showed that on 19th July, at a time when everyone thought the Equal Pay claim was doomed and when Mr Hess was on Mr Jackson's side about the leave, Mr Hess had sought advice from Mr Rogers, a Department of Health personnel manager, about the granting of special leave; and that the decision to refuse the application was taken probably on 19th July, but in any event prior to 25th July, and taken for good and sufficient reasons namely genuine doubts as to whether Mr Jackson fell within the criteria for granting special leave.

That document only came to light on the morning of the first day of the hearing. Having reflected on it, and on other documents over the lunchtime adjournment, Mr Jackson, as the Industrial Tribunal found, changed his tack significantly. His case then was that the refusal of leave was because he had brought the Equal Pay Act at all, thus challenging the Department of Health.

In support of his case, Mr Jackson placed reliance upon the case of the other five staff members who had successfully applied for extended leave or career breaks in the period 1992 to 1995. Those were his comparators and he maintained that he had been treated less favourably than them.

The respondents sought to argue that they were not true comparators because their cases had been handled at an earlier time, under another regime, when different considerations applied and different people took decisions.

The Industrial Tribunal found that they were true comparators in the sense that they all worked at Glenthorne, all applied for and all were granted special leave, and none had brought Equal Pay Act proceedings.

The Industrial Tribunal also found, however, and contrary to argument put forward by Mr Jackson, that there had been a change of regime, culture and practice.

The Industrial Tribunal found that in 1992 the Department of Health set up the Youth Treatment Service as an Executive Unit, with responsibility for Glenthorne and also St Charles' Centre at Brentwood. The Chief Executive was Mr Ostapiuk; the Director of Operations was Mr Mackin, and his assistant or deputy was Mr Hess.

Documents and procedures required that, in respect of "Personnel Management functions delegated to the Chief Executive" he was to comply with rules and regulations of the Treasury or OMCS governing the personnel management of Civil Servants.

The Industrial Tribunal found that the criteria that applied to granting special leave remained unchanged throughout the period under consideration by the Industrial Tribunal. The criteria applied to Mr Jackson's application had been the same as those in place before. One of the criteria was that, in connection with an application for special leave of more than three months duration, the Personnel Department of the Department of Health should be consulted. The Industrial Tribunal found that the evidence strongly suggested that in the period 1992 to 1995 the requirement for consultation with the Personnel Department was not adhered to. Not only that, but also, as the Industrial Tribunal found, scant regard was paid to the criteria for granting special leave. The Chief Executive and Mr Mackin "operated an extremely lax policy with regard to the granting of unpaid special leave which they seem to have treated almost as a right rather than a privilege."

In 1995 the Youth Treatment Service was in crisis. St Charles failed and closed. The Youth Treatment Service as it had been was disbanded. The Chief Executive, Mr Ostapiuk and some of his Directorate disappeared from the scene.

Glenthorne was the sole Youth Treatment Centre in the country. It became known as the Youth Treatment Service in its own right. Mr Hess became the Centre Director and was the senior man on site. Previously, Mr Ostapiuk had been the senior man. But Mr Hess had far less power than Mr Ostapiuk had had as Chief Executive, and none of the delegated responsibility. The Department of Health took on a much closer role in professional matters. Mr Adams, Director of Professional Support Unit, became Mr Hess's Line Manager. In personnel matters, Mr Duncan became Mr Hess's Line Manager. The Department had also undergone something of a cultural change with regard to personnel matters and had become more "hard-nosed" with regard to such matters, including entitlement to leave.

Those were all findings by the Industrial Tribunal.

(q) :

"We are satisfied on the balance of probabilities that although Mr Lane and the others may properly be regarded as comparators, the circumstances of their applications for special leave do not establish any kind of normal yardstick against which Mr Jackson's application can be measured. All of them were dealt with under the regime of Mr Ostapiuk and Mr Mackin. Mr Jackson's application was the first after the Youth Treatment Service properly so called had ceased to exist. Although the overriding criteria remained the same throughout it seems clear that Mr Ostapiuk and Mr Mackin simply failed to apply them and handed out unpaid special leave virtually willy nilly. From that it follows that the mere fact that Mr Jackson's application might very well have been successful under the old regime does not help us in determining whether it has been turned down under the new regime for proper or improper motives."

Mr Jackson's case, that in reality the decision as to granting special leave was essentially that of Mr Hess, was rejected by the Industrial Tribunal.

Mr Jackson enlarged his argument by seeking to demonstrate that his application for special leave was not turned down for proper but for improper motives.

He said that the reason given to the Industrial Tribunal by the respondent that it was for business reasons was raised for the first time at the Industrial Tribunal and was disingenuous. Alerted as it was by the late introduction of that explanation, the Industrial Tribunal examined it carefully. It rejected Mr Jackson's point. It found that business needs were certainly in Mr Rogers' mind at the time; and that there was a genuine business case for refusal, in that a fourth Secure Unit had just been opened: it had not been easy to recruit a suitable Unit Manager. It was a cogent consideration as to whether one of only four Unit Managers should go away for a protracted period when there were no obvious replacements in sight.

Mr Jackson's next point was that since the two operations men, Mr Hess and Mr Adams, had not objected to his leave, but the objection came from Mr Rogers, a personnel man, there can have been no genuine operational objection. The Industrial Tribunal rejected that, having regard to the fact that Mr Hess and Mr Rogers had sat together on the panel interviewing for a number of posts over a period of time, including the Secure Unit Manager post. That explained, too, why Mr Hess had consulted Mr Rogers, and Mr Rogers' knowledge of operational difficulties.

The Industrial Tribunal then considered at length the relevant policy governing special leave without pay, and found not only the business reasons for refusing the application; but also that the application of Mr Jackson was not a strong one.

Mr Jackson raised a further point from which he said an inference should be drawn, namely the unusual number of senior Civil Servants involved in the decision against him. The suggested inference was that a policy decision was taken at high level to punish him for the Equal Pay application. The Industrial Tribunal considered that, too, in detail and rejected it. The tribunal said at paragraph 6:

"Accordingly, there is nothing in the admittedly large number of civil servants who were involved in this matter from which we can draw any inference adverse to the respondents. It is again a function of the institutional changes which have taken place since the demise of the Youth Treatment Service."

Having given all these matters apparently full consideration, the Industrial Tribunal concluded in this way at paragraph 8:

"... with respect to Mr Jackson, at the end of the day whilst it would be wrong to dismiss his whole case as a flight of fancy, it is merely his unshakeable, if honestly held, perception that has driven him forward, a perception which is wholly unsupported by the evidence. If one starts from the premise that one has been the victim of victimisation, if we may be forgiven the tautology, it is very easy to find snippets which point to that conclusion and therefore bolster the belief. If one starts, as the Industrial Tribunal must start, from a neutral position, such little straws in the wind as there are, fall very far short of persuading us that Mr Jackson's perception was accurate. Indeed, we would go so far as to say that had the burden of proof been upon the respondents to persuade us that there was no discrimination by way of victimisation against Mr Jackson they would have discharged it."

An appeal allies to the EAT on a point of law only. To succeed, Mr Jackson has to persuade us that the Industrial Tribunal reached a wrong conclusion because it misdirected itself as to the law. Findings of fact are matters solely for the Industrial Tribunal. We consider the case on the facts as found by it. A challenge to a finding or findings of fact can only come within the category of an error of law if it is demonstrated that the Industrial Tribunal reached a material conclusion of fact in the absence of any evidence upon which to found it; or a conclusion of fact that no reasonable tribunal could possibly have reached on the evidence before it.

The Industrial Tribunal directed itself as to the law, and Mr Jackson makes no challenge of that direction. He seeks to challenge findings of fact on the basis that they were reached in a way that amount to an error of law, and we have heard his highly detailed argument over more than 1½ days in an endeavour to establish whether there is anything in it.

Part of Mr Jackson's challenge to the decision of the Industrial Tribunal depends upon establishing procedural irregularity or unfairness. In accordance with the normal practice in such instances, Mr Jackson's Notice of Appeal and affidavit were put before the Chairman for his comments. The Chairman's comments were sought by letter of 5th September 1997: his comments were made in writing on 10th October 1997. The Chairman made clear that he did not have the documents before him and had to rely upon his recollection. Mr Jackson has also put in an affidavit from a friend, to which I will refer. The Chairman has made comments in respect of that also.

Anybody with experience of the judicial function will know that, whilst detail is retained until the case is concluded with a reasoned decision, it is usually quickly lost amidst the plethora of detail of subsequent cases.

The Chairman's comments are valuable to us on procedural matters: but on questions of firm detail of evidence, it is the extended reasons to which we look; and to the extent that Mr Jackson went to the Chairman's comments to support his argument on evidential aspects, we were not much assisted.

It was, as we have indicated, Mr Jackson's endeavour to demonstrate to the Industrial Tribunal that it should draw an inference that he had been victimised by the Department of Health because of his involvement in Equal Pay Act proceedings. To that end he sought to show that the approval of special leave for the comparators (and himself) had in reality been in the hands of Mr Hess; to the extent that there had ostensibly been changes of practice since 1995 (which he did not accept), the reality was unaltered. In the case of his comparators there had been consultation with others and, in at least one case, consultation with the Department of Health. There was therefore nothing in the respondent's case that Mr Jackson's application had been dealt with under a different regime, culture and practice. Whilst there had, in the ordinary course, been no change in the way applications for special leave had been dealt with, in his case the matter had been dealt with at high level within the Department because of his Equal Pay case; his application fell within the criteria and was, indeed, a stronger case than those of some, at least, of the comparators. The overriding business objection was brought up at the last minute and was disingenuous. From all that, an inference of victimisation should be drawn.

The first ground of appeal argued by Mr Jackson was a procedural one, in two main parts.

Mr Jackson contended that the tribunal was biased. By that he did not mean to imply that the tribunal was personally prejudiced against him. He relied on the decision of the House of Lords in Regina v Gough

[1993] AC 646

. There is no factual foundation for bias in the sense that it was considered by the House of Lords. Rather, Mr Jackson submitted to us that the Industrial Tribunal took a view early on and before Mr Jackson's cross-examination had been finished and before any of his five witnesses gave evidence. Having taken an early view, the Industrial Tribunal was more inclined to see later evidence in a way that weighted it to their initial view.

It is to be remembered that it was on the first morning of the hearing that Mr Jackson's primary case collapsed in the light of recently produced documents. Mr Jackson declined the offer of an adjournment. Over the lunchtime adjournment he recast his case. That is the sort of circumstance, it seems to us, in which any tribunal of fact needs to look particularly searchingly at the new case now put forward. As the Chairman observed, Mr Jackson seemed to be making up his case "on the hoof".

As I have indicated, Mr Jackson has filed for our assistance an affidavit by a friend, Sian Lloyd-Jaquet, sworn on 26th March 1998. She is apparently a friend of Mr Jackson who was present throughout the hearing and made notes. We have not seen the notes. This was the deponents first attendance before an Industrial Tribunal. The affidavit is made some 10 months after the hearing. In it, Miss Lloyd-Jaquet said:

"16. More to the point, I can state that before Mr Jackson had finished giving his evidence on the first morning of the case, I along with at least four other witnesses present, made a point of making Mr Jackson aware of our view that the Chairman had clearly taken a dislike to him, to the fact that he was representing himself and that the fact he was able to 'hold his own' appeared to be source of some annoyance and frustration to the Chairman.

17. Throughout the proceedings I noticed a clear difference in the way in which the Chairman interacted with Mr Jackson compared with the way in which he interacted with the Respondents barrister. With the latter, the Chairman was pleasant, responsive and attentive. With Mr Jackson, the Chairman came across as having taken a dislike to him from the very start of the proceedings. He made a number of comments which had the effect of undermining Mr Jackson's questioning of witnesses, he appeared to be impatient and at times some of his interjections appeared to be downright rude. In short, I came away from these proceedings with the view, rightly or wrongly, that the Chairman was a very pompous and arrogant man whose conduct and attitude suggested that he was very resentful to waste "his valuable time" listening to an applicant in person, who in my view at least, he made quite clear, didn't have any business appearing in his Tribunal and had no worthwhile case."

In respect of that, the Chairman commented:

"It is always sad to read comments such as are contained in paragraphs 16 and 17 of the Affidavit. One naturally likes to think that one is pleasing all of the people all of the time. However, where one is faced with either a professional representative or a litigant in person who seems quite incapable of realising that there is no need to ask the same question repeatedly or to return to the same point repeatedly and who, unless controlled with some firmness, seems capable of cross-examining in perpetuity, interventions from the Chair are essential in order to do justice between the parties. The more frequently one intervenes, I suppose, the more one is likely to be giving the appearance of bias. The more frequent the need for intervention, the more likely it is that one will appear to be, and indeed one may well be, irritated. As I believe I said in an earlier comment, I would not normally record in the notes of evidence the fact that I had intervened unless the interventions were becoming so frequent that I felt it necessary to do so. In this case there was at least one occasion when I made a note of an intervention for precisely that reason."

In its skeleton argument before us, prepared by Mr Weisselberg who appeared before the Industrial Tribunal, the respondent submits that the Chairman conducted himself in an exemplary manner during the hearing, and that the appellant's cross-examination of the respondent's witnesses was very repetitive. It was entirely proper for the Chairman to encourage the appellant to avoid repetition, it is submitted. This encouragement was neither overbearing nor improper.

Mr Jackson has taken exception to the assertion by the Chairman that he was repetitive in his questions. He showed us a letter dated May 1997 from his advocacy tutor at Bar School, commending him for his ability in that field. We were not, of course, at the tribunal hearing. We have the comments of the extremely experienced Chairman. We have had for ourselves the opportunity of hearing Mr Jackson's argument over some hours. I have to say that we find ourselves in some sympathy with the Chairman's comments.

We reject the argument that the decision of the Industrial Tribunal in this case is rendered unsafe on the basis of bias or prejudice.

The second prong to this part of the appeal relates to the interventions by the Chairman. In his Notice of Appeal, Mr Jackson refers to a number of interventions during Mr Jackson's cross-examination of witnesses and in his closing submission. This appeal has been conducted in the light of a shorter amended Notice of Appeal; and in argument Mr Jackson focused on two particular interventions. In respect of each, Mr Jackson submitted to us that the intervention by the Chairman deflected or distracted him, or even deterred him, from developing his case. In the case of the first instance, Mr Jackson developed in detail before us the significance to him of the point and how his case should have been developed.

The first instance occurred, says Mr Jackson, during the evidence of Mr Hess.

It was, as we have indicated, the respondent's case that in the period 1992 to 1995 responsibility for approving leave requests had lain with Mr Ostapiuk and Mr Mackin. Mr Jackson's case was that it was Mr Hess who gave approval.

In his evidence-in-chief (as noted by the Chairman) Mr Hess said:

"I was involved, in an operational sense, in looking at some earlier applications for leave. I had no power to grant any, but I was asked if there would be any significant operational difficulties if granted.

I had no power at any stage for granting these, but I could say whether it was operationally viable or not."

Mr Jackson sought to challenge that evidence. He argued before us that he referred Mr Hess to various documents in the trial bundle showing that Mr Hess had been responsible for agreeing leave requests. At a point during the exercise, when he had taken Mr Hess to three documents, so Mr Jackson contends, the Chairman intervened and told Mr Jackson that he had "got the point".

Mr Jackson took that to mean not only that the Chairman had understood the point that Mr Jackson had been making; but had also accepted it as establishing that, contrary to his evidence-in-chief, Mr Hess had indeed approved leave requests.

The Notes of Evidence do not help us on this aspect, save that it appears that Mr Jackson was cross-examining Mr Hess about leave requests at or towards the end of the third day of the hearing.

It is the recollection of Counsel for the respondent, that Mr Jackson was not in any way prevented from cross-examining Mr Hess on this aspect.

The Chairman, commenting later and without reference to the documents, observes:

"It is, therefore, very likely that I interrupted Mr Jackson when he put the same point to Mr Hess and received the same answer from him in respect of a succession of letters from him signed by Mr Hess informing the recipients that they had been granted leave. However, as Mr Hess said in evidence, it does not mean that he gave authority for the career break because he had no authority to do so. The point which we had got was that Mr Hess had signed the letters.

Unfortunately, I do not have the bundle of documents with me as I write this, nor do I have the copy letters exhibited to Mr Jackson's affidavit but, as I recollect it, there was an exhaustive exploration of the bundle and he was certainly not prevented from referring to other documents making a different but related point. He was only stopped after making the same point (it would appear from paragraph 8 of the affidavit) in respect of three individuals, Mr Egan, Mr Walters and Mr Apter, and getting the same reply from Mr Hess in respect of each."

That response, however, gave Mr Jackson further ammunition. His point was not that Mr Hess had signed all the letters - he did not - but that they recorded his approval. So Mr Jackson argues that the Industrial Tribunal had not in fact got the point at all. That further point is, we stress, taken from the Chairman's comments and not from the extended reasons.

We have been shown a number of letters.

"... this has been agreed by the Centre Manager."

"Paul Hess has supported your application to take a career break ..."

"I am able to agree to your request from the Centre's point of view ..."

On this aspect Mr Jackson takes issue that a passage paragraph 3(n) of the extended reasons:

"(n) All of the contemporary documents suggest that the decisions were taken by Mr Ostapiuk or by Mr Mackin. ..."

Mr Jackson argues that the documents show nothing of the kind.

It seems to us to be unrealistic - though symptomatic of Mr Jackson's approach to this appeal - to read that single sentence in isolation from the whole; or to take it as analysis of the documents alone without regard to their evidential status in the context of the evidence as a whole.

We have been shown those, and other, documents to do with leave requests. Considering them in the light of the evidence as noted by the Chairman, it does not seem to us that the documents detract from Mr Hess's evidence that he was consulted about some leave requests from the Centre's point of view.

This line of argument was opened up for Mr Jackson before us on the premise that he had established a procedural unfairness; and that it was of such significance - namely in preventing him from pursuing his challenge to Mr Hess's evidence - that the decision of the Industrial Tribunal is fatally flawed.

But Mr Jackson has not established to our satisfaction that there was indeed a procedural unfairness. To the extent that he did not put further documents at the time (if there were further documents to assist him in advancing his point), it was Mr Jackson who made this assumption that the Chairman agreed with the argument he was putting forward notwithstanding the evidence to the contrary that had been adduced.

Although that was Mr Jackson's primary argument on the consequences of that intervention, he attributed to it also his distraction from his intention to make a further point on the documents. He says that he intended to go on to show that the respondent's personnel section had been consulted about those leave applications, so as to demonstrate that the respondent's case that those applications had been dealt with within the Executive Unit, and not in consultation with the Department of Health's Personnel Section, was unfounded.

In that context, Mr Jackson argued that the "point" he thought that the Chairman had got and had agreed with was not simply that Mr Hess had approved leave requests but also, there having been consultation with the Department of Health's Personnel, the procedures in 1992 to 1995 were exactly the same as in his own case and that there had in reality been no change in regime.

Mr Jackson then drew our attention to the passage in the Chairman's comments (not the extended reasons) in which he said:

"As I have not got exhibit MJ4, nor the bundle of documents, I am unable to give a categorical answer to the point in para 10, but I am almost certain that no such documents were before the Tribunal. The question of whether the Personnel Department of the Department of Health had been involved in previous applications for special leave was a very live one and any such documents would have been of the highest importance. My recollection is that there were none in the bundle. I refer to ... of the Notice of Appeal in which Mr Jackson confirms that he complied with the direction to disclose all documents upon which he intended to rely. It is, of course, entirely possible that my memory is at fault, but I am quite certain that Mr Jackson was not denied the opportunity to refer to documents unless he had already referred to similar documents making exactly the same point. ..."

In a later comment the Chairman said:

"So far as Mr Jackson's supporting affidavit is concerned, the only point on which I think it is appropriate to comment is the bundle of documents marked MJ2. As I have already explained, the Tribunal office does not appear to have retained a copy of the bundle of documents and I cannot, therefore, say for certain whether the documents in the bundle MJ2 were or were not, either in whole or in part, included in the bundle before us. Some I certainly recognise, the great majority I do not. I note with interest that none of the documents in the bundle MJ2 appear to have been extracted from the Tribunal's bundle as the only page numbers on them seem to have been applied for the purposes of Mr Jackson's affidavit. So far as my memory serves me, we were not shown any documents from the Youth Treatment Centre at Brentwood, nor from the Department of Health in London, in relation to Mr Jackson's former colleagues who were granted special leave. If they were not drawn to our attention and in particular if Mr Jackson did not refer to them during the lengthy cross-examination of the Respondents' witnesses, more than one of whom gave evidence which might possibly have been contradicted by those documents, it is unsurprising that we did not refer to them and were unaware of them."

Whilst contending that there is a large number of documents that show consultation between the Department of Health, its Personnel Section and Special Leave applicants, Mr Jackson says that he did not put them to Mr Hess because of his understanding that the Chairman accepted that there had been no change in regime; nor did he put them all to Mr Rogers, from the respondent's Personnel Section, because Mr Rogers had no personal knowledge of the five earlier leave applications.

We looked at the documents produced by Mr Jackson in his bundle MJ2, whilst noting that they were not put to witnesses at the hearing. It is not for us to draw any conclusions or inferences from them, not least because neither evidence or findings of fact were addressed to them. Furthermore, we are mindful of the Chairman's further comment:

"In any event, there appears to be something of a non-sequitur here. The interjection referred to at paragraph 8 was in connection with evidence being given by Mr Hess. The thrust of the applicant's cross-examination of Mr Hess was that it was he, Mr Hess, who had granted the leave. It does not seem relevant to that line of questioning that the Department of Health's own Personnel Department had had an involvement in the making of the decision. The issue was in fact canvassed with another witness, Mr Rogers, the Personnel Manager of the Department of Health. The intervention complained of in paragraph 8 of the affidavit took place on day 3. Mr Hess' evidence continued into day 4, Mr Rogers being the next witness. ..."

The Chairman then referred to passages in the evidence which indicated that Mr Rogers did not have personal knowledge of the comparator cases. We do not accept that Mr Jackson was prevented from putting relevant documents demonstrating consultation with the Department of Health. We do not accept that there was procedural unfairness. We do not accept that the Chairman's intervention in any way prevented Mr Jackson from putting forward other relevant (though not repetitive) material. It seems to us that on this aspect of the appeal Mr Jackson seeks to develop further, in a selective way, the case he put before the Industrial Tribunal who were the tribunal of fact.

The second intervention by the Chairman of which Mr Jackson specifically complains turns on a passage in an internal document to do specifically with Mr Jackson's leave application.

On 19th July 1997 Mr Hess sent a memorandum to Mr Rogers seeking his advice. In it he said:

"... is it reasonable to "aggregate" grounds for a request in a case where no individual argument is sufficiently strong but an overall argument can be made - more to the point could a litigious individual make it appear unreasonable not to do so?"

Mr Jackson told us that he sought to cross-examine Mr Hess about "litigious individual". He told us that the only litigation in which he was or had been involved was the Equal Pay case. He wanted to demonstrate through cross-examination that Mr Hess must have been referring in that manner to the Equal Pay case: that it was clear that Mr Hess was influenced by it.

Mr Jackson told us that before he could do that, the Chairman took over, not only in questioning Mr Hess as to what he meant by "litigious individual" but suggesting to Mr Hess that he used the word "litigious" in a colloquial sense.

Consequently, the answer given by Mr Hess as noted by the Chairman was coloured by the Chairman's suggestion.

Mr Hess's noted evidence was:

"Litigious" can mean contentious. This was not a reference to Mr Jackson's involvement in equal pay case. I was referring to my view that Jackson was the sort of person likely to contend anything that didn't result to his liking. Not an opinion based just in equal pay case, but on experience of working with him over the years. He has made statements to senior managers about affairs in the Centre where he disagrees with a decision. I think he has sometimes gone outside the Centre into the wider department to try and resolve matters rather too readily. My feeling is that matters have been taken elsewhere too readily and quickly when they could have been resolved locally. I point to the failure to use the grievance procedure over this matter. There was an issue over a member of staff under Jackson's management where he and I disagreed. I couldn't arrange a meeting between him and the staff member. Jackson took it outside the Centre very rapidly in a way which I thought was inappropriate. Jackson did speak to me on a number of occasion. He refused to meet me and the staff member concerned. He gave reasons but I did not think that were reasonable."

The Chairman made comments on this aspect also:

"I do not think it can be right that I stopped Mr Jackson pursuing such questions (although I may well have pointed out that it was unrealistic to approach the questioning as though the word was a term of art with a precise meaning like a word in a statute ..."

The Chairman then referred to the Note of the Evidence. In a later comment the Chairman said:

"I intervened to stop Mr Jackson's cross-examination of Mr Hess on the use of the word "litigious" because he was framing his questions as though the words had been used in an Act of Parliament and was a term of art. My recollection is that he attempted to cross-examine by reference to a dictionary. However, that could be misrecollection on my part. I am still mystified as to why so much emphasis is being placed on this particular point.

Such force, if any, as there may have been in Mr Jackson's argument on this point was surely dispelled in the course of his submissions to us, when in response to a question from one of the industrial members, Mr Jackson made clear that he was not suggesting that Mr Hess would have given a different answer to the Chairman than he would have given to Mr Jackson.

Mr Jackson argued a third, though subsidiary point on intervention by the Chairman. A question had been raised during the case why Mr Jackson had gone straight to the Industrial Tribunal (on 31st July 1996) on refusal of his leave application rather than use internal procedures. During his closing submission Mr Jackson gave valid reasons for proceeding in that way. Of course he was perfectly entitled to proceed to the Industrial Tribunal. The Chairman apparently indicated to Mr Jackson that he need not address the Industrial Tribunal further on that aspect. Mr Jackson's complaint is that there appears reference to it in paragraph 5(a) of the extended reasons. That paragraph reads:

"As we have already said, Mr Hess reports to Mr Duncan in, inter alia, personnel matters. He was required to consult Mr Rogers, or rather the Personnel Department, which happened to be Mr Rogers because of the circumstances in which the point was raised, because the application was for more than three months leave. Having discussed the matter with Mr Rogers and concluded that the application should be turned down and conscious of the fact that in his judgment Mr Jackson was "a litigious individual" (a diagnosis borne out by the fact that these proceedings were started within six days of the refusal being communicated to him at a time when Mr Jackson was in hospital having been seriously assaulted by a youth at the Centre and when he could equally well have pursued this matter as an internal grievance) Mr Hess wanted guidance on the wording of the letter of rejection."

The words in parenthesis seem to us to be pure surplusage. They do not go to the reason for the decision in any way and it may, perhaps, have been better had they been omitted.

Although Mr Jackson's main argument was upon the interventions to which we have referred, in the course of it he highlighted two material findings of fact which he argued could not be sustained on the evidence. One is at paragraph 3(n) of the extended reasons. The other is on the question whether Mr Hess approved applications for leave. That is a related point. We have referred to both and have not found perversity of findings.

The other main limb of Mr Jackson's appeal relates to two passages in the extended reasons concerning the strength of his application for unpaid leave.

In his formal letter of application of 17th June 1996 Mr Jackson had relied upon three grounds. The first was more time to care for his daughter, who lived with her mother. The second was to take further academic study (a reference to solicitors or barristers study and examinations). The third was opportunity to have a break from the day-to-day involvement in the Centre after five years.

The reality behind that letter was that Mr Jackson wanted to pursue professional legal studies in London and to supplement his income by work with children in that area.

We were shown the relevant parts of the Department of Health criteria for granting special leave without pay. The Industrial Tribunal had considered it in detail.

Paragraphs 48 to 51 of the criteria set out general considerations. Paragraph 49 includes "usually when a member of staff can be spared and a need exists, special leave without pay should be allowed." There is then provision for leave up to three months and separate provision for leave for more than three months.

The Industrial Tribunal, considering the criteria in detail, said:

"We understand that to mean that the staff member has the need for the special leave."

The child care point in dealt with in paragraph 68 of the criteria "Career breaks":

"A career break is a long period of special leave without pay to help staff deal with domestic responsibilities."

There is later reference to "care for a child". As to that the Industrial Tribunal found:

"Quite clearly the reason for this career break, whatever Mr Jackson may now say about it, was not "to care for a child or children". Although Mr Jackson used the word "caring" in his letter of application, in reality it could have amounted to no more than an increased opportunity for access."

Mr Jackson did not challenge that in argument before us.

Paragraph 54 deals with Educational Study:

"Subject to staffing needs up to four years special leave without pay may be granted for approved courses of full-time educational study at approved Institutions provided the intention is to return to the Department at the end of the course. Special leave will not usually be allowed for any qualification or profession outside the Civil Service. Further advice may be obtained from Training or Personnel Section."

A point arose before the Industrial Tribunal from the letter of rejection of Mr Jackson's application which said that the Civil Service does not employ barristers. That, as the Industrial Tribunal found, was patently wrong. Mr Rogers evidence was that he read for "the Civil Service", "the Department". The Industrial Tribunal found in its extended reasons:

"There is some justification for that reading in the preceding sentence "provided the intention is to return to the Department at the end of the course". That certainly implies that the qualification needs to be of some use to the Department. It is certainly not such a departure from the words of the criterion that the tribunal can draw any adverse inference from Mr Rogers interpretation.

Mr Jackson has sought to demonstrate that the respondents view that the qualification of barrister would not be of use to the Department, in particular to Glenthorne, is erroneous. But in our judgment, he has done so in vain and by a process of rather inelegant and inadequate post hoc rationalisation."

But the real point here, as we understand it, was that Mr Jackson contended that paragraph 54 should be read with paragraph 49. It was his need that was relevant and the Industrial Tribunal's decision that his application did not amount to "need" was perverse. What the Industrial Tribunal found was this:

"In the absence of a comparator whose application has been dealt with more favourably in similar circumstances under a similar regime, the next best evidence which Mr Jackson could have was that a strong application had been turned down at a time when it might reasonably have been expected to be granted. But this was not a strong application. If we may speculate for a moment, this being application under the new regime, probably neither Mr Hess nor Mr Jackson had any reason to suppose that the basis upon which previous applications had been granted did not still apply. No doubt had he made this application to Mr Ostapiuk when he was Chief Executive it would have been granted, but in the context of the published criteria even in the absence of the overriding business needs of the Centre, the application is really for nothing more than two years unpaid leave for self advancement which hardly seems to amount to a "need" as mentioned in paragraph 49 of The Brown Book."

It seems to us, however, that the Industrial Tribunal was there highlighting a distinction between "need" and "desire". That was a conclusion open to the Industrial Tribunal on the material before it. The relevance, of course, is whether the respondent turned down a strong application so that an inference might be drawn of victimisation. Further, as the Industrial Tribunal stress, these criteria were all subject to the question of staffing needs. The finding of the Industrial Tribunal on this aspect continues:

"It is quite impossible to say that in concluding that such an application was substantially outweighed by the business needs of the Centre, Mr Rogers was acting other than rationally, reasonably and properly. It is impossible to draw inferences adverse to the respondents from his decision or perhaps more properly, his very forceful advice to Mr Hess which Mr Hess took to be a decision, that the criteria were not met. Given that the criteria were not met and, in our judgment as a matter of objective fact they were not met, and given that this was a matter of discretion not automatic right, it seems to follow almost inevitably that Mr Jackson's application would be refused."

We have already referred earlier in this judgment to the finding as to the business needs objection which Mr Jackson has not challenged before us.

We are quite unable to find any perversity in this part of the Industrial Tribunal's decision.

There is a further, and again subsidiary, argument presented by Mr Jackson on the criteria. It relates to paragraph 58 of the criteria "Work in the Public Interest". The relevant part reads:

"Except where arrangements exist for transfer between the Department and certain outside bodies, special leave without pay (normally not exceeding two years) may be granted to an individual who wishes to take up work in the public interest provided that- (a) the work has some value to the Department and/or it will develop the individual in some way; ..."

That related to Mr Jackson's intention to work with children in the London area.

The Industrial Tribunal made a finding about that:

"This, with respect to Mr Jackson, is the weakest point of what it must now be clear we regard as a generally weak application. The work was not intended to be work in the public interest. It was work in Mr Jackson's interest. It was to be a means of supporting himself whilst he studied for Bar School. At the time the application was made it was not know where, if anywhere, he would be working and therefore it could not be known whether the four criteria set out in paragraph 58 or any of them were complied with."

Mr Jackson submitted to us that the Industrial Tribunal had misapplied paragraph 58 of the criteria, in particular in overlooking "or it will develop the individual in some way". Mr Jackson did not, however, develop any challenge to the Industrial Tribunal's finding that the work he proposed was not in the public interest but in his own; nor indeed that the work had not been identified. He developed the point by submitting that both Mr Hess and Mr Rogers appeared in evidence to accept that he met the criteria, so it really was not open for the Industrial Tribunal to make a contrary finding. The overall conclusion of the Industrial Tribunal that the criteria were not met was expressed to be "in our judgment as a matter of objective fact they were not met". The Industrial Tribunal was thus looking both to the reasons that Mr Rogers gave for rejecting the application, or giving guidance that it should be rejected; and, objectively, whether the doubt as to the meeting of the criteria was reasonable.

We stress that the primary task of the Industrial Tribunal, in evaluating all the evidence about the criteria, was to consider whether an inference of victimisation could properly be drawn from the respondent's refusal of the application for special leave. The Industrial Tribunal found, as a fact, that no such inference could be properly drawn. That is a conclusion it reached on an overall view of all the evidence on this aspect of the case and it is not, in our judgment, in any way invalidated by the detailed submissions that Mr Jackson made on particular aspects of the criteria.

At the outset of the hearing of the appeal Mr Jackson indicated that he proposed to address us in paragraphs 7.1, 7.9 and 7.10 of his amended Notice of Appeal. He did that. We have also read and considered paragraphs 7.2 to 7.8 inclusive and the remainder. Mr Jackson rightly recognised that they were weaker points and we agreed.

We have read the extended reasons as a whole. The Industrial Tribunal plainly, in our view, gave close consideration to the whole case and made clear the findings of fact that were open to it. We are not in any way persuaded that the findings or decision are unsafe for the reasons Mr Jackson argued, still less that the decision was a wrong one induced by any error of law. The appeal is therefore dismissed.