HEATHER CAMPBELL v DEPARTMENT OF SOCIAL SECURITY [1999] UKEAT 442_99_2311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 442_99_2311Case No Appeal No. EAT/442/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HEATHER CAMPBELLAPPELLANTDEPARTMENT OF SOCIAL SECURITYRESPONDENT
Before
Mr Justice Lindsay Mr W Morris Mrs D M PalmerDate 23 November 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON WITH THE ASSISTANCE OF MR HAINEY (OF COUNSEL) UNDER ELAAS Mr Justice Lindsay (President): We have before us, as a preliminary hearing, the appeal of Mrs Heather Campbell in the matter Campbell v the Department of Social Security . On the 1 st April 1998, Mrs Campbell lodged her IT1 against the DSS. It gave the dates of her employment as being from 13 th April 1987 to 31 st January 1998. The only complaint at that stage identified in her box 1 was constructive dismissal but in the details of the complaint which she gave at the same time she alleged breach of section 5(1) and section 6 of the Disability Discrimination Act 1995.[2]The DSS in its IT3 alleged that there had been no dismissal. So far as concerned constructive dismissal the Tribunal had before it the IT3 of the DSS which said "It is further denied that the Respondent has treated the Applicant less favourably on the grounds of her disability under section 5.1 of the Disability Discrimination Act 1995". As to disability discrimination and as to constructive dismissal, the DSS said "The Applicant has been on sick leave since 3 rd January. An independent assessor from the Occupational Health Service was asked to assess the medical condition of the Applicant and to decide whether she was able to continue to give efficient service. The Applicant was at first refused medical retirement. However, on appeal from the Applicant, and with consideration of further evidence given by the Applicant, a case of ill health retirement was supported. The contract therefore terminated by agreement between the Applicant and the Respondent".[3]The IT3 also took the point that the Applicant was time barred. Nothing, in fact, further seems to have been heard of the time bar point, so we attach no importance to that. The matter went forward with the dispute foreshadowed in the IT1 and the IT3 going to a hearing at London (South) under the Chairmanship of Miss A M Lewzey sitting with Mr J Pearson and Mr R Foskett on 3 days in January of 1999. The decision, and the extended reasons, were sent to the parties on the 10 th February 1999 and Mrs Campbell's Notice of Appeal is dated 11 th March 1999.[4]Mrs Campbell appears before us today in person. She had also represented herself at the hearing before the Employment Tribunal. Today, though, she has also the benefit of Mr Hainey of Counsel provided through the ELAAS Scheme and I hope she is grateful, as we are, to Mr Hainey for his assistance, although it has, in fact, been Mrs Campbell who has chiefly addressed us. The unanimous decision of the Employment Tribunal was that the Applicant's complaint of disability discrimination failed and the Applicant's complaint of constructive dismissal failed.[5]Mrs Campbell, to say something of the background, was in 1992 assigned to the DSS's Wandsworth Child Support Agency. In 1994 she applied successfully for a job in the Sutton office. However, she suffers from very serious allergies and has been diagnosed as suffering from CFS (Chronic Fatigue Syndrome). She is registered disabled by reason of her allergies. She lives close to the border between Wandsworth and Wimbledon. We understand from her that the precise description of her address has varied, because boundaries have changed, but it is in that corner. She found travelling to and from Sutton to be, to use the word that is used in the extended reasons, "tiresome".[6]In 1995 she applied for a transfer to Wimbledon but was not successful in that particular job application. On the 3 rd January 1996 she started sick leave and never thereafter returned to work. The Tribunal sets out at some length a long history of requests by Mrs Campbell for transfer to Wimbledon, as to the support she was given by her own GP, the findings of the DSS's hardship committee and the conclusion that was come to that there were no vacancies at Wimbledon, which was already as it was held to be overstaffed. The Tribunal referred to the decision by the DSS that Mrs Campbell should be paid sick pay at pension rate from August 1996. It was also held that there was no vacancy at the Wimbledon office for a period. Mrs Campbell was held to have withdrawn her request for a Wimbledon job. She replaced that request for a job in Wimbledon with a request for a job in Wandsworth; that was in late 1996. Her GP supported what was called a request for a return "very part time" to work and Mrs Campbell herself took the view that she could not work even part time. In paragraph 16 of the Tribunal's extended reasons they say: "Mrs Croft telephoned Mrs Campbell on 26 th June and suggested that she should return to work on a part time basis. Mrs Campbell indicated that this was not possible because she was unable to sit for longer than half an hour but when she was able to return she would like to go back to the Wandsworth Office but would also consider Battersea, Balham or Streatham".[7]Mrs Campbell, it was held by the Tribunal, requested in July 1997 that her job be terminated. It was held that there was an absence of vacancies at those four places to which Mrs Campbell had referred. There is evidence that was accepted, as it seems, by the Tribunal, of a visit by Mrs Campbell to the DSS's Occupational Health Nurse and that nurse's view that it was unlikely that Mrs Campbell could return to work for the foreseeable future. The Occupational Health Services' view was that she did not qualify for ill health retirement. At first they held that the payment of sick pay at pension rate could not continue. Her own GP's view was that she would not be able to return to full time employment in her old job and the Tribunal said, speaking of the doctor of the Occupational Health Department: "Dr Lavanchy of the Occupational Health Department certified Mrs Campbell as suitable for medical retirement on the grounds that she was suffering the disabling effects of somatisation. The Central Personnel Department wrote to Mrs Campbell on 23 rd December 1997 advising her that her application to retire on grounds of health had been approved and that 31 st January 1998 would be regarded as her last day of service and that sick pay pension rate would continue until that date. Thereafter there was no further correspondence".[8]Mrs Campbell's case, of course, falls into a number of headings and so far as concerns disability discrimination, the Tribunal reminded itself of the provisions of section 6(1) and section 6(3)(c) of the act. It referred to the Code of Practice. It referred itself to the EAT's decision in Morse v Wiltshire County Council (1998) IRLR 352 . It set out correctly the sequence of steps which Morse recommended were to be taken by Tribunals dealing with such cases and in their paragraph 29, the Tribunal says this:
"Mrs Campbell complains that the Respondent failed to make reasonable adjustments by transferring her to the Wimbledon Office or, latterly, to the Wandsworth Office to avoid the need for her to travel by train to Sutton, a journey which is exacerbated her allergies. In reaching our decision we noted that there were no vacancies at any relevant time at the Wimbledon, Wandsworth or indeed Balham, Streatham or Battersea Offices of the Respondent. It was clear to the Tribunal that Mrs Campbell was at a disadvantage in travelling to Sutton in comparison with people who did not suffer from allergies"
. They continued in paragraph 30:- "We next had to decide whether the Respondent had taken such steps as were reasonable in all the circumstances to prevent Mrs Campbell being disadvantaged. The only relevant provision of section 6(3) is section 6(3)(c) which refers to "transferring her to fill an existing vacancy". There were no vacancies. We considered the provisions of paragraph 4.22 of the Code of Practice even if their had been vacancies, a transfer would have involved little benefit to Mrs Campbell because she was unfit to work at all material times". Accordingly, what they decided in relation to disability discrimination was this: "Nonetheless, although there is an obligation upon the Respondent to make reasonable adjustments, the obligation only extends to transferring Mrs Campbell to fill an existing vacancy and there were no such vacancies and any such adjustment would have had little benefit on Mrs Campbell as she was unable to work. It is therefore the unanimous decision of the Tribunal that the Respondent's have taken all reasonable steps and accordingly Mrs Campbell's complaint of disability discrimination fails".[9]As to Mrs Campbell being unable to work, her own GP (as held by the Tribunal) had reported this:
"On 21 st November 1997, Mrs Campbell's GP wrote to Debbie Allcock supporting ill health retirement and reporting that the psychiatrist to whom Mrs Campbell had been referred believed that it was quite unlikely that Mrs Campbell would be able to return to her full time employment which she had previously held"
Mrs Campbell herself had said, as it is held in paragraph 22:- "Heather advised that she had started treatment for ME and asked about her transfer request but stressed that she still felt to ill to even take up a position PTMG next door".[10]Dr Lavanchy's view we have already cited. As for the issue as to whether there were any relevant vacancies we have already cited the relevant finding of the Tribunal. True it is that under section 6(3) of the Disability Discrimination Act (which gives a list of examples of steps that may need to be taken by an employer). The list includes:
"assigning him to a different place of work"
The Act does not require other persons to be dismissed in order to create vacancies and it must be remembered that section 6(7) provides, broadly speaking, that the disabled person cannot require to be treated more favourably than others.[11]On the facts of this case, in practical terms, assigning to a different place of work, on the facts added nothing to transferring to fill an existing vacancy. There was, in other words, as it seems to us, no error of law in the Tribunal's conclusion that it was right to concentrate on the issues as to existing vacancies. On the facts as to whether there were relevant vacancies, before us today Mrs Campbell has referred us to some pages (that in our particular bundle begin at page 141 and run on to 148) which are papers that, at first blush, suggest that there were vacancies at relevant offices at relevant times. The point arises whether those papers were adequately put in evidence before the Tribunal. As to that we have the Chairman's notes which, at our page 18, say on the point as follows: "As Mrs Campbell correctly points out, when Mrs Campbell produced documents that she said the Respondent had placed on her table the previous day on the Wednesday, the chairman pointed out that the Tribunal did not have copies of these documents. Mrs Campbell did not seek to present the documents to the Tribunal. Mrs Campbell told the Tribunal that the documents had been placed on the table by the Respondent. The Respondent's representative disputed this. The Chairman pointed out that the Tribunal did not have these documents and without them, the matter could not be taken further. Mrs Campbell did not seek to present the papers to the Tribunal and when the Chairman suggested that she should continue with her submissions, she did so. The paragraph in the Affidavit relates to papers that the Chairman has no knowledge of, as the Tribunal will show the documents, and Mrs Campbell then continued her submissions. The Chairman could not form a view on the documents as she did not see them".[12]Quite how the documents were handled and precisely what their provenance was is obviously not entirely clear. It is apparently plain from Miss Lewzey's note that the documents were never properly put into evidence. An opportunity was given and almost what one might call a warning was given in the sense that the Chairman pointed out that the Tribunal did not have these documents and that without them the matter could not be taken further, but the documents were not put in front of the three person Tribunal I think we have to accept that that was the case.[13]It is moreover, the position, as Mrs Campbell has told us this morning, that she knew of the vacancies suggested in these documents as they occurred. She could, therefore, have given oral evidence of them as well as relying on whatever the import of the documents, had they been put in evidence, truly was. She could have deployed them in cross-examination. It would obviously have been helpful if the Chairman had indicated precisely to Mrs Campbell what needed to be done in order to have the papers properly received into evidence, but one cannot say that there was an error of law in the Chairman's attitude that, without having the documents properly copied and put before the whole Tribunal, they were not to be treated as received into evidence. Mr Hainey, relying on the recent Goodwin case, suggests that the Tribunal's attitude, especially in disability discrimination cases or perhaps solely in disability discrimination cases and certainly where a disabled person is appearing in person, should adopt a more inquisitorial attitude rather than leaving matters to be dealt with under the adversarial approach which is common.[14]To require Tribunal's to be truly inquisitorial, in the sense of embarking on their own investigations and procuring such evidence as they think fit, as opposed to their relying on what evidence is layed before them by the parties would be a revolutionary step which the Act gives no hint of having been intended. We cannot say that for the chairman to have required the documents properly to be put in evidence, represented was an error of law, however convenient it might have been for a more relaxed view to have been taken.[15]The Tribunal referred itself, so far as concerns constructive dismissal to section 95(1)(c) of the 1996 Act and to the leading case of Western Excavating ECC Limited v Sharp in the Court of Appeal. The Tribunal held that Mrs Campbell had herself applied for medical retirement, that she had appealed against that when that was at first refused, that medical retirement had then been granted to her and that no correspondence had thereafter ensued. On this subject they said:
"There is no evidence before this Tribunal of any breach of Mrs Campbell's contract of employment by the Respondents. If there was such a breach Mrs Campbell has waived it by applying for medical retirement and appealing against the refusal of medical retirement. Indeed, she never appealed against the decision that she should be medically retired, if indeed, that was then her position"
. A little later the Tribunal continued:- "Nonetheless, there is no evidence of any breach of contract of employment by the Respondent".[16]The Notice of Appeal which has not been explored line by line or paragraph by paragraph in Mrs Campbell's oral address nonetheless contains matters to which we have thought it right to give attention, as best we can. It raises matters which are broadly divisible into two. Firstly, complaints in relation to the conduct of the hearing itself and secondly, other complaints. We shall take the latter category first, the "other" complaints. So far as concerns disability discrimination, and doing the best we can to discern arguable or possibly arguable points out of the rather lengthy Notice of Appeal, it is first asserted that the decision that there were no existing vacancies at the relevant offices was a perverse decision.[17]That is not an argument that we see as having any reasonable prospect of success. The Tribunal had before it evidence which included the evidence of Mrs Mary Croft, a Personnel Officer in the DSSS's benefit directorate. She says, at page 139 of our bundle:- We also discussed which office she would like to transfer to. She said that she would like to go to the Wandsworth Office but would also consider Battersea and Balham or Streatham. I contacted the Personnel Section covering these offices during July but was informed that there no vacancies and staff were, in fact, being offered flexible early retirement. This was due to a surplus of staff at that time. On the 28 th July 1997 I telephoned Heather to inform her that I had made enquiries regarding transfer and there were no vacancies in the offices to which she wished to transfer .[18]So long as there is some evidence for a particular conclusion which a Tribunal arrives at it does not make the decision perverse to say that there was evidence that could have been relied upon to the contrary. It is for the Tribunal to decide which evidence to believe and to accept and which not and it also for the Tribunal to decide how much weight to give to particular passages of evidence. The Tribunal itself is the master of fact. It does not, therefore, assist Mrs Campbell to assert that the Tribunal could have held in ways other than as they did. They could have held that there had been vacancies because the Tribunal plainly did have in front of it evidence that there were no vacancies and, presumably, it is that evidence that they preferred. Whether they would have come to a different conclusion had the papers at page 141 and succeeding pages (to which we earlier referred), been properly put into evidence, who knows and who knows either what conclusion they would then have come to? But they were entitled to look at the matter in terms of what was formally put in front of them and, on that, they did have evidence that their were no vacancies at the particular relevant offices and hence it cannot be said that their conclusion on that subject was perverse.[19]Secondly, Mrs Campbell complains that in having regard to existing vacancies or their absence, the Tribunal overlooked section 6(3) of the Disability Discrimination Act and its requirement that assignment to a difference of place of work should be considered. We have, in effect, already dealt with that point. Section 6(3) is merely a list of examples of steps that may need to be taken. On the facts of this case, as it seems to us, it sufficed for the employer and for the Employment Tribunal to look to see if whether there were vacancies rather than contemplating, additionally, assignment to a different place of work.[20]Next Mrs Campbell complains that the Tribunal, taking the view that such steps as the employer could take by way of transfer or assignment would not, in any event, have alleviated the problem, did not properly address, she claims, section 6(4)(a) of the Act. But that neglects to take account of the evidence laid before the Tribunal Mrs Campbell's own GP said it was quite unlikely that she would be able to return to her full time job. She herself said that she felt too ill to even take up a "position PTMG next door". The Occupational Health Nurse had reported that she was unlikely to be able to return to work in the foreseeable future and it has been noted that that recommendation was not that she could not work full time or that she could not work other than close to home but that she was unlikely to be able to return to work period. What was said on that was at page 97 of our bundle: Its is my opinion following the observations and discussion with Heather that she is unlikely to be able to return to work in the foreseeable future. Heather now agrees with this and appeared realistic about her future prospects.[21]Next Mrs Campbell says that the decision that she was unable to work was perverse. Well, we have just mentioned some of the evidence on which the Tribunal came to a contrary conclusion. The Tribunal was entitled to select the evidence which it chose to rely upon. Mrs Campbell says: Always my doctor and consultant said that I was fit for at least part time work as long as my disability was accommodated first, ie., I got a transfer near to my home. But, in consequence of that, so long as no suitable transfer could be made, and none could, Mrs Campbell, on her own argument, was unable to work and, in any event, we have already cited the Occupational Nurses' view that seems to go beyond that.[22]Turning to constructive dismissal, Mrs Campbell argues in her Notice of Appeal that she was manipulated into asking for medical retirement, but she fails to identify any breach of contract by the DSS let alone a fundamental breach and let alone her proving that she sought retirement on account of that fundamental breach. So we see no error of law in the complaints that we have so far dealt with .[23]We now turn to the complaints that are relative to the conduct of the hearing. Before that I should add that another point that was taken this morning was that insufficient attention had been given by the Tribunal to the General Practitioner's letters to which Mrs Campbell referred to us in the course of argument today. However, there is no reason to think that the Tribunal did not have those letters in their mind; they refer to the support that she got from her GP at several stages in the argument and we cannot attach any weight to this point. It is to be remembered that in Retarded Children's Aid Society v Day, Lord Russell of Kollowen in a dictum which is frequently cited here, pointed out that one cannot prove that a Tribunal had a particular fact not in mind simply by saying that they did not expressly refer to it.[24]Reverting, then, to the conduct of the case at the Tribunal, we have a two-and-a-half page statement sworn on the 9 th April by Mrs Campbell and some six pages of comments on that by Miss Lewzey, the Chairman. Mrs Campbell has not developed this side of the case today and she has said that one of her problems is misperception and it may thus be that in dealing with these complaints now that we are dealing with complaints which, on reflection, are not worth pursuing. But, for all that, as the complaints are made in the Notice of Appeal, we would think it preferable that they be dealt with Mrs Campbell complains that she was shouted at, that her condition and need for adjournments was insufficiently recognised, that the Chairman was rude to her, and that she, Mrs Campbell, was confused at the hearing. She says that she has hyperacusis and cannot hear two things at once; that the Chairman was biased against her and biased in favour of the DSS, that the Chairman used bullying tactics, that the Chairman lied to her on and hurried her on and that a witness summons was refused to her. Those, I think, are the chief complaints in this area.[25]Miss Lewzey, the Chairman, rebuts these charges in full detail. So far as concerns the witness summons, the Chairman says this:
"Prior to the hearing, a request by Mrs Campbell for a witness order against Dame Ann Bowtell was refused by the duty Chairman who was not Miss Lewzey. At the beginning of the first day of the hearing, Mrs Campbell renewed her request for a witness order against Dame Ann Bowtell who is the permanent secretary of the DSS and the Tribunal refused to grant a witness order against Dame Ann Bowtell as it was satisfied that she would not be able to give evidence on matters that were relevant to the issues before the Tribunal. This was not a matter of bias towards the Respondent and against Mr Campbell"
. So that matter is dealt with and we cannot say that there is an error of law involved in that area and, of course, there was no appeal against that refusal of the witness summons at the time.[26]As for the other conduct alleged against Miss Lewzey, not only do we have Miss Lewzey's detailed denials but we have full answers from Messrs Pearson and Foskett, the two lay members against whom Mrs Campbell makes no complaint. We do not think it necessary to take up time reading their responses but suffice it is to say that they strongly reject Mrs Campbell's complaints about rudeness, bullying, bias and lack of consideration. Mrs Campbell's hyperacusis was not mentioned at the hearing, they say. Mr Pearson says: Arrangements had been made at the Tribunal to facilitate her condition during the hearing (including a mattress for her to lay on in the court room), neither Mrs Campbell nor her carer made any complaints about the lack of facilities, or that the conduct of the hearing was having an adverse effect on the health of the Applicant. He continues: I also take great exception that this Applicant makes such serious and unfounded allegations against the Tribunal Chairman who showed the Applicant courtesy, concern as to her disability and gave her the advice and support normally given to Applicants who are not represented. Mr Foskett supplies a detailed time timetable for the hearing and he adds: The Chairman also advised her that should she need a rest/break at any time, she must tell us, and it would be granted. He says: I believe that it was between this period (2.00 pm and 3.45 pm) that I noticed Mrs Campbell had closed her eyes. I brought this to the attention of the Chairman, who immediately asked Mrs Campbell if she was alright; she replied that she was, and that she often concentrated with her eyes closed, also if Mrs MacDonald felt that she was overdoing it she would advise her to ask for a break. A little later: Day 3. The Chairman asked Mrs Campbell if she was alright to continue. She said that she was. Both sides summed up their case. Mrs Campbell at the end of her summing up addressed us by thanking us and expressing the view that the Tribunal hearing was a good therapy for ME and finally: At all stages of the hearing The Chairman was very considerate and helpful, at no time was she rude or shouting at the Applicant, at no time did she favour the Respondent to the Applicant.[27]Even if we put on one side the Chairman's own response (and there is no reason why we should) these comments from the lay members against whom no complaint is made would suffice, in our view, to deny all force to Mrs Campbell's complaints as to the conduct of the hearing and we thus find no sufficient case to be substantiated to enable us to react in her favour. So far as concerns her complaints as to conduct and generally, we think that we have dealt at some length both with the points made before us today and also the points in the Notice of Appeal so far as they have been capable of being detected from that document. Standing back and looking at the matter as a whole, we detect no material error of law in the Tribunal's extended reasons. It is only errors of law with which we are able to deal, so we must dismiss the appeal even at this preliminary stage.