Garg v Wolverhampton Health Authority & Ors [1999] UKEAT 252_95_0904

EAT
Garg v Wolverhampton Health Authority & Ors
[1999] UKEAT 252_95_0904 · 1999-02-08
MR JUSTICE MORISON (PRESIDENT): This is a preliminary hearing but unusually it is being held inter-partes. The proceedings are complex and it was largely for that reason that the President thought it would be of assistance to have both parties present so that the Court could then proceed, if appropriate, to deal with the appeal in substance if it felt that there was a point which was arguable.The background to these proceedings may be shortly stated. Dr. Garg was a Consultant Psychiatrist who was employed by the Respondents, the Wolverhampton Care Authority, to work at one of their hospitals. In October 1992, he sustained a serious injury as a result of an attack upon him by a patient. Thereafter, he was off sick. He was sent, in due course, a P45 and it was the Health Authority's contention (in proceedings which thereafter commenced to which I will refer) that his employment came to an end at the end of November 1992.Dr. Garg presented two complaints to the Industrial Tribunal. The first in time, number 19755/93 was presented at the end of March 1993. In box 8, where Applicants are required to give dates of their employment if applicable, he said that his employment began on 22 June 1991 and ended on 31 December 1992. His type of complaint specified in box 1 was racial discrimination contrary to the Race Relations Act 1976 and there were a number of Respondents who were named as being involved. Annexed to that complaint, the Applicant set out at some length written details of what he was alleging. He said that his complaint involved Wolverhampton Health Authority as his employer. He said that his employment with the Health Authority began on 22 June and was wrongfully terminated on 31 December 1992 without just cause or excuse. He said that in regard to this matter
"I wrote to various employees at the Health Authority on various occasions and since 22 December 1992, when I received my P45 form from the Department of Finance of Wolverhampton Heath Authority, all the letters which I wrote... up to the date of this application received no reply."
In paragraph numbered 4 of this document, Dr. Garg said :
"not only was I wrongfully dismissed (or unfairly dismissed) attempts were made by the Health Authority to obtain recovery of the possession of their flat from me in an unlawful manner as I was told they would change the locks of the flat, remove my goods etc., and these threats were issued by various employees of the Health Authority contrary to Section 1 of the Protection From Eviction Act 1977."
and then further on in the document, he referred to the attack which had taken place on him in the Psychiatric Department of Wolverhampton Health Authority, which left him with serious injuries which necessitated two operations, which has meant that he was still signed off unfit to work with effect from 8 October 1992.His second complaint was presented in May of 1993 and in box 1 the type of complaint he labelled as follows:
"To determine questions pursuant to Employment Protection (Consolidation) Act 1978 Section 91(1) and Section 101(1)(b) and (c)."
Again, he gave in box 8 the dates of his employment that he had given before and he set out again at some length the nature of his complaint and this related to his complaint that he was entitled to a redundancy payment. In paragraph 1 he said this:
"I received my P45 and payslip from Wolverhampton Health Authority during the last week of December 1992 from which it became clear that Wolverhampton Health Authority had terminated my employment with them with effect from 31 December 1992."
The matter was then listed for a procedural hearing before the Employment Tribunal and it came before a Tribunal held at Birmingham on 1 September 1993.Following that hearing, there was extensive correspondence, including correspondence as to whether the parties wanted the Tribunal to give a decision following that hearing. Ultimately, on 16 December 1994 the Tribunal decision with full reasons was promulgated and sent to the parties. The Tribunal's findings were essentially in Dr. Garg's favour. Their first decision was that the application for a redundancy payment had been made in time; that it had jurisdiction to deal with the claim alleging unlawful racial discrimination against the 9 Respondents but that it adjourned the hearing for a date to be fixed, together with consideration of whether the application for unfair dismissal was made in time and whether or not he had sufficient continuous service to qualify for the remedies which he claimed.In the course of giving their decision, they identified the issues, the nature of the applications and the findings of fact which they made having heard evidence. The Tribunal found in paragraph 8 of the extended reasons this:
"When giving evidence, the Applicant said he was complaining about the ending of his employment on 31 December 1992, produced to the Tribunal form P45 issued by the Respondents which gave his date of leaving as 31 December 1992. The Applicant received a pay slip from the Authority showing him as a leaver as of 31 December 1992 which appeared to relate to income during the period ending on 31 December 1992, from which deductions of pension, national insurance and other charges were made. Having heard the evidence and challenge certain aspects of it in cross-examination, Mrs Levy, on behalf of the Hospital Authority, conceded on behalf of her clients that the Applicant's employment with the Authority continued until 31 December 1992."
That finding was in favour of Dr. Garg and was against the Hospital Authority. The Hospital Authority's position was that the employment contract had come to an end as of 30 November 1992 and that therefore complaints which were being made by Dr. Garg were out of time.In paragraph 16 of their decision, the Tribunal said this:
"In essence, the Applicant's claim is that his dismissal by the Authority was an act of unlawful racial discrimination by all of the Respondents and so the act complained of was done on 31 December 1992. If that is not correct, the Applicant said that the first time that he knew that he was to be unlawfully discriminated against was very late in December 1992 when it came to his attention that a renewal of his employment, which he had previously anticipated, would not take place. The Applicant's application alleging that he was subject to racial discrimination was received at the Central Office of the Industrial Tribunals on 30 March 1993. The act complained of was done on 31 December 1992 and so the application was in time. As provided by Section 68(1) of the Race Relations Act and the Tribunal finds that to be the case."
Following this decision, Dr. Garg presented a Notice of Appeal which was received by the Employment Appeal Tribunal in January of 1995. The essence of the appeal was that the Chairman of the Tribunal was biased in favour of the Respondents and he complained about gross delays in the procedural history of these proceedings which disclose inordinate and unnecessary and prolonged delays detrimental to the interests of the Appellant. He was relying in effect on the substantial delay which there was between 1 September 1993 and the promulgation of the decision in December 1994.The grounds of appeal also were that the decision was erroneous in law. It was submitted that in order to determine whether or not the Industrial Tribunal had jurisdiction to entertain the alleged claim for redundancy payment, the question of sufficiency of service had first to be considered. It was suggested that the date of 31 December was arbitrary. The relevant date is absolutely wrong
"for the simple reason that Wolverhampton Health Authority has not dismissed me as yet and therefore the alleged redundancy claim which I filed on 26 May 1993 with the Industrial Tribunal is in itself an invalid claim."
The matter was listed for a preliminary hearing in accordance with the procedure after Dr. Garg had been asked to reduce to affidavit his complaints against the Chairman of the Tribunal and the Tribunal Chairman had had an opportunity of answering them. The matter came before the Court on 11 October 1996 when Dr. Garg asked for the proceedings to be adjourned and that application was acceded to by the Employment Appeal Tribunal.The matter was duly re-listed for hearing at the beginning of 1997 but again, there was an application by the Appellant, Dr. Garg in person, that the proceedings at the preliminary hearing stage be adjourned. That application was acceded to. The matter came back again in July 1997 and there the EAT ordered that the appeal be adjourned to a date to be fixed and that the matter be listed as an inter-partes hearing before the same constituted Tribunal in accordance with the judgment of the Employment Appeal Tribunal. The matter came back before the Court this morning on the inter-partes preliminary hearing.It becomes apparent that the question at issue for Dr. Garg was the finding by the Industrial Tribunal that he had been dismissed by his former employers as of 31 December 1992. He says that that was a wrongful finding of fact for four reasons: Firstly, because of the delay associated with the hearing and the ultimate publication of the decision; secondly because the Tribunal was dealing with preliminary issues and that they had not (as the terms of the order make plain) finally concluded their work in relation to all those issues; thirdly that the written decision of the Tribunal demonstrated bias; and finally, that the decision as to when he had been dismissed was in the context of a claim for a redundancy payment which fell out with the Tribunal's competence by reason of various statutory provisions.Furthermore, he complains that the Industrial Tribunal considered the question of dismissal at a time when he, Dr. Garg, was not fully in charge of his own reasoning processes. He submits to us that it would be unfair to hold him to a finding of fact when in fact it will destroy or may destroy other parts of his claim where he says that his employers have behaved unlawfully, possibly criminally towards him.On behalf of the Authority, it was argued that the Employment Appeal Tribunal cannot re-open the question as to whether he was dismissed because it was Dr. Garg's assertion before the Industrial Tribunal that he had been dismissed and the finding that he had been dismissed as of 31 December rather than 30 November, was precisely what he had been asserting in dispute with the Authority. So far as the delays by the Industrial Tribunal were concerned, there was an unusual history of this case and it could not be said, with any justification, that the Industrial Tribunal had been guilty of any significant delay.In relation to the question as to whether there was bias, there was nothing in the papers which would justify such an allegation being made in the first place or our acceptance of it in the second place. Although it is true that the complaint for the claim for a redundancy payment could also have been made under the Whitley Council Procedure, nonetheless the Tribunal was competent to deal with such a complaint, assuming of course that Dr. Garg fulfilled the necessary criteria in relation to continuous service in respect of it.It seems to us very clear that Dr. Garg's position is effectively hopeless in relation to the question as to dismissal. It was the foundation of his complaints lodged with the Industrial Tribunal. It has formed the foundation of the issue between the parties on which the Industrial Tribunal had been asked to adjudicate in 1993 and in respect of which they did adjudicate in 1994. It seems to us that it is not open to the Employment Appeal Tribunal in those circumstances to seek to reverse that finding of fact in the context in which it came to be made.Furthermore, we specifically reject the specific complaints which Dr. Garg presented against the Industrial Tribunal's decision. It is true that there has been delay but we agree with Counsel for the Authority that this is not culpable delay in regard to the peculiar circumstances adopted by the parties after the hearing on 1 September 1993. Secondly, the fact that at this hearing there were still issues which were outstanding does not in any way affect the finality of the Tribunal's decision on the issue as to whether the employment terminated. So far as bias is concerned, it seems to us that this is an allegation which has no basis in fact and should not have been made. Insofar as Dr. Garg is relying upon the lack of jurisdiction in the Tribunal to determine his complaint in relation to redundancy, it seems to us that the Tribunal had jurisdiction to consider whether his complaint for redundancy was well founded and therefore that argument should be rejected.It follows therefore that there is no arguable point of law in relation to the finding on the effective date of termination of the contract and we therefore dismiss that part of the appeal. Dr. Garg cannot, as it seems to us, present complaints on one basis and when he has succeeded on that basis before an Industrial Tribunal seek to turn around and say that the whole basis for his claim was false and that he was not in fact dismissed at all.In the course of giving directions for the hearing of this appeal, I indicated that it seemed to me that there was an issue that was extant in relation to unlawful deduction from wages. The employers have recently accepted that there has been an unlawful deduction from wages though Dr. Garg insists (as is his right as it seems to us) that he should have a declaration to that effect. We are happy to make a declaration that the employers have made unlawful deductions from his wages in relation to rent. The quantification of that claim is for the Industrial Tribunal to undertake. This matter will be remitted back to the Industrial Tribunal to consider what further proceedings should now follow as a result of its decision which was promulgated in December 1994. The delay in this case has been substantially caused, if not wholly caused, by Dr. Garg but we would not criticise him because he has obviously not been fully fit during this hearing.Accordingly the appeal is dismissed. The matter is remitted back to the Industrial Tribunal for it to continue its consideration of the complaints by Dr. Garg and we make a declaration that he been the victim of an unlawful deduction of wages in relation to rent but that the quantification of that claim will have to be determined by the Industrial Tribunal in due course, including any question of interest.