Chilton v London Borough Of Richmond Upon Thames [1999] UKEAT 29_98_2901

EAT

Chilton v London Borough Of Richmond Upon Thames

[1999] UKEAT 29_98_2901 · 1999-01-29

JUDGE C SMITH :

This is an application for leave to proceed to a full hearing of his Appeal by Mr Chilton, the Applicant before the Industrial Tribunal, against a decision of the Industrial Tribunal held at London South on 14,15 and 16 October 1997, of which extended reasons were sent to the parties on 6 November 1997, whereby the Industrial Tribunal held unanimously that the Applicant had been fairly dismissed and that his claim for unlawful discrimination on the grounds of disability under the Disability Discrimination Act was dismissed and that, in regard to his claims for breach of contract, he should be paid various sums, which were detailed in the decision, but that all other claims of breach of contract were dismissed.

We have reminded ourselves that we only have to be persuaded that there is an arguable ground of appeal to allow the matter to proceed to a full hearing. We have had the benefit of oral argument from Mr Chilton and we have, of course, considered carefully all the voluminous documentation that has placed before us.

The background to the matter is clearly set out in the decision of the Industrial Tribunal and the facts are found by the Industrial Tribunal in paragraph 9, a very lengthy paragraph with a great number of sub-paragraphs, indeed, 36 sub-paragraphs in all, where the whole history of the matter is set out. The position is that the Applicant had been employed over a period coming up towards 10 years until his employment was terminated in January 1997 with an effective date of termination, according to the findings of the Industrial Tribunal, of 27 April 1997. He had been employed as a management services manager and he reported to a Mr Wood, the assistant head of personnel and business planning.

Matters proceeded unremarkably, on the findings of the Industrial Tribunal, up until about 1996. There were minor problems before that date but things began to become difficult, from the Applicant's point of view and, indeed, the Respondents'(the London Borough of Richmond upon Thames) point of view, from about March 1996 or possibly earlier, in 1995. Certainly by March 1996 there were tensions. By May the Applicant was beginning to write suggesting that he was being marginalised, as the Industrial Tribunal found in sub-paragraph (9) of paragraph 9:-

"The Applicant wanted dialogue with his superiors and assurance that neither his work nor the people in his section would be changed without consultation. The Applicant considered that there was an insufficient workload for his section, and he wanted to re-establish the job which he used to have."

That was a finding of fact by the Industrial Tribunal.

There was going to be a meeting as arranged in May 1996 but then, as the history related by the Industrial Tribunal shows:

"...on 18 June 1996 the Applicant went off sick and never returned to work after that date."

There then followed an unfortunate situation with which those of us who sit on the Employment Appeal Tribunal have become familiar namely a problem of a stress-related complaint. By July, on the findings of the Tribunal, the Applicant, unfortunately, was sending in sick notes speaking of a "work-related stress reaction", he had gone to a Christian retreat, and arrangements were made for him to see Dr Small, the Council's occupational health doctor.

There followed, in the chronology of facts given by the Tribunal, numerous meetings with Dr Small and assessments by Dr Small. By October the Applicant was submitting a formal grievance to the effect that his section had been obliterated, so to speak, by the Respondents, in that he maintained that it was no longer an effective part of the Respondents' working arrangements. There was the hearing of the grievance, with a chairman appointed, with the conclusion that there was not any substance, on the Industrial Tribunal's findings of fact, to the Applicant's grievances. Then there is a finding of fact, by the Industrial Tribunal in sub-paragraph (28):

"Dr Small recorded that the Applicant had an "unshaking view that he is right and can prove this"."

Matters became very serious, in our judgment, on the findings of the Industrial Tribunal, in December 1996 when unfortunately, Dr Gilley, the Applicant's GP reported to Dr Small, on 6 January 1997, that the Applicant had attempted suicide. There followed a situation where Dr Small advised that it was unwise for Mr Chilton to proceed with his grievance appeal. Dr Small wrote to inform the employers, in effect, that he wanted to put forward, with the Applicant's agreement, a recommendation for early retirement on the grounds of ill health, and that is what happened.

There was an informal letter from Mr Wood to the Applicant confirming the early retirement and then there was a formal letter terminating the Applicant's employment with 12 weeks' notice, the last date of service being 27 April 1997 which unfortunately was not posted - it was sent in an unfranked envelope and did not get to the Applicant until 17 February 1997.

It is against that background that the Industrial Tribunal had to consider the various claims of the Applicant and it is important, in this particular case, to note that there were careful submissions made to the Industrial Tribunal by Counsel who then appeared on behalf of the Respondents, Mr Swift, and of course the Applicant was in person being assisted by his father, Mr E T Chilton. It is important to note that there were detailed submissions made to the Tribunal and they were carefully summarised by the Tribunal at paragraphs 10 to 15 of their decision. Submissions were made on the issue of whether the dismissal was unfair. Submissions were also made by Counsel, importantly, on the fact that the Disability Discrimination Act had come into force on 2 December 1996, that it was not retrospective in effect, and therefore it was only for that very short period, between the beginning of December 1996 and the letter of dismissal of 29 January 1997 that the various issues under the Disability Discrimination Act fell for consideration by the Tribunal. They had to confine themselves, as was submitted to them, correctly in our judgment, so that they were only entitled to consider matters after 2 December 1996.

The attention of the Industrial Tribunal was correctly drawn to the case of London Fire and Civil Defence Authority v Betty

[1994] IRLR 384

with regard to the unfair dismissal claim. Detailed submissions were made, at paragraph 13, along the lines that, even if the Applicant was disabled within section 1 and even if he had received less favourable treatment under section 5(1), the Respondents would rely on the defence of justification. A submission was further made that the doctors had reported that the Applicant had tried to commit suicide and should be removed from the cause of the illness which they saw as work-related stress. Thus a submission was made that in those circumstances the Respondent had no option but to follow the medical advice and grant the Applicant medical retirement and, with regard to the failure to make adjustments, it was submitted that attempts had been made to make adjustments since June 1996 but after the grievance hearing there was no further opportunity to do anything further. Those were the detailed submissions made.

The Industrial Tribunal went on to set out the law correctly at paragraphs 16 and 17. They then went on to make their findings. They made their findings in relation to unfair dismissal at paragraphs 19 to 22 and they concluded that the reason for dismissal was the Applicant's inability to work due to stress, i.e. capability. They noted the effect of the decision of Betty and they correctly, in our judgment, asked themselves whether the Respondents had informed themselves of the nature of the Applicant's illness, consulted with him about it, and they also considered the way in which the employment was finally brought to an end.

In our judgment, despite the arguments which have been put forward before us by the Applicant today, the approach of the Industrial Tribunal with regard to the unfair dismissal claim cannot be impugned. We took into account that the Applicant, Mr Chilton, forcefully submitted to us that he was 'shut out', in effect, by the Chairman from giving evidence in detail of what he called the 'entire process', in other words the way that he had been treated by his employers from the moment he started making what he submitted were legitimate complaints about the diminishing role of his section within the Respondents' organisation. The submission was made to us that the Industrial Tribunal thereby deprived Mr Chilton of being able to put forward matters which might have altered the decision of the Industrial Tribunal with regard to unfair dismissal. His submission was that if he had been able to go into all the detail that he wished to go into, with regard to the way in which matters had developed between himself and his immediate superiors, that might have had the result that the Industrial Tribunal would have concluded that the employers had acted unfairly with regard to his dismissal. But in our judgment it is clear from the authority of the case of Betty that it is irrelevant for the Industrial Tribunal to consider whether the illness from which the Applicant unfortunately suffered was caused or brought about by the action of the employer. Accordingly, in our judgment, even if that evidence had been given in even more detail before the Industrial Tribunal, as a matter of law it would not and could not have affected the result.

In any event it is clear that a great deal of evidence was placed before the Industrial Tribunal with regard to this aspect of the matter. Accordingly we cannot see any arguable ground of appeal against the finding that there was no unfair dismissal.

With regard to the Disability Discrimination Act, in our judgment, looking at the position with regard to that claim, in the light of the fact that the Act had only come into force on 2 December 1996, we do not see that there is any arguable ground of appeal in relation to the claim being made by Mr Chilton under the provisions of that Act. We accept that there was clear medical evidence before the Industrial Tribunal that Mr Chilton, the Applicant, did have a mental impairment which amounted to a clinically well recognised illness within the Act. We also accept that it is certainly arguable that, contrary to the findings of the Industrial Tribunal, the Applicant did establish that the mental impairment which he had had a substantial and long term adverse effect on his ability to carry out his normal day to day activities. To that extent we accept the submission made to us that there may be grounds for challenging the finding of the Industrial Tribunal in that regard in paragraph 26.

However, in our judgment, the Industrial Tribunal were entitled, in the particular circumstances of this case, to make the finding they did in paragraph 27 of the decision, namely that the Respondents were justified in terminating the Applicant's employment for the reasons the Industrial Tribunal gave. First of all, on the evidence before the Industrial Tribunal, the Applicant had requested such a termination on the grounds of ill health and, secondly, it had been strongly advised by the doctors that the Applicant should retire on the grounds of ill health.

In those circumstances, in our judgment, since there was no opportunity for the employers to have made any kind of adjustments during the very short period between 2 December 1996 and the end of January 1997, within section 6 of the Act, it does follow quite clearly, in this particular case, that if there was any act of discrimination it was justified within the relevant section of the 1995 Act. Accordingly we take the view that there is no arguable point with regard to the claim under that Act.

Here again we have considered on this aspect of the Appeal whether the Applicant had been disadvantaged by the decision of the Chairman - which we are prepared to assume was made - preventing him from giving evidence of the whole history of the difficulties he had had with regard to his employment. That might have been a formidable point in relation to a disability claim had the Act been in force earlier but, in this particular case, since the Act only came into force on 2 December 1996, once again we have concluded that there was no such disadvantage here to the Applicant in not being able to give the history of the matter in the preceding months.

In our judgment, at the end of the day, the Industrial Tribunal's decision here was a careful decision which dealt properly with the relevant facts and which reached conclusions applying those facts to the relevant law which, in our judgment, cannot be faulted. Accordingly, for those reasons, we find that we must dismiss this application.