Moroney v Eastwood School & Essex CC [1999] UKEAT 642_96_1702

EAT
Moroney v Eastwood School & Essex CC
[1999] UKEAT 642_96_1702 · 1999-02-17

JUDGE PETER CLARK :

This case has a long history. The Appellant was employed by the Respondents as a teacher at Eastwood School, Leigh-on-Sea, Essex from September 1970 until his dismissal effective on 31 August 1991.In December 1985 he instituted grievance proceedings in respect of statements made by Mrs Woodham, the then Head Teacher of the school.In 1988 he became the subject of disciplinary proceedings.In mid 1989 he suffered a depressive illness, causing him to go off work on 19 June 1989, never to return.Medical reports were obtained first from Dr. Killala on behalf of the Appellant. He reported on 12 February 1990 and a copy of that consultant psychiatrist's report was forwarded to the Respondents on 21 March 1990. The Respondents asked the Appellant to undergo a medical examination by their own medical adviser. At first he declined, but eventually was seen by Dr Coe on 18 October 1990. On 16 November 1990 Dr Coe gave his opinion that the Appellant was permanently incapacitated from continuing to work as a teacher.Based on the medical evidence the School Governors recommended the Appellant's dismissal on grounds of incapability by letter dated 18 January 1991 sent to the Local Education Authority, (LEA.) Against that recommendation the Appellant appealed by notice dated 15 February 1991.On 17 April 1991 the Authority's Standing Disciplinary Sub-committee met. The Appellant chose not to attend that meeting. They dismissed the appeal. The dismissal took effect on 31 August 1991.On 28 November 1991, the Appellant presented a complaint of unfair dismissal to the Employment Tribunal, then the Industrial Tribunal. On 23 October 1992 a Chairman, Mr Bano, sitting at the London (North) Tribunal struck out the particulars of complaint annexed to the form IT1 and substituted particulars set out at pages 14 to 16 of a document sent to the Tribunal on 22 April 1992. Against that interlocutory order the Appellant appealed to this Appeal Tribunal. On 24 May 1994 that appeal was dismissed for the reasons appearing in the judgment of Judge Hull QC delivered on behalf of the Appeal Tribunal on that day.The substantive hearing of the complaint took place before a Tribunal sitting at Whittington House (Chaired by Mr A Puttick) on 13 and 14 March 1995. The complaint was dismissed by a decision with full reasons dated 7 June 1995, (the substantive decision). Against that decision the present appeal (EAT 642/96) is brought.The appeal first came on for preliminary hearing before a division of this Tribunal presided over by Morison P on 7 March 1997. That hearing was adjourned for the Appellant or his representative to make and swear an affidavit dealing with the contentions raised in paragraph 3 of the notice of appeal and to obtain the Chairman's comments on that affidavit. Thereafter a direction was to be given as to whether the case was to proceed directly to a full hearing or by way of a resumed preliminary hearing.The Appellant swore an affidavit on 20 March 1997 and his representative, Mr Lock, made an affirmation dated 19 March. The Chairman commented on those documents by a letter dated 9 September 1997, and thereafter the President directed that the preliminary hearing be resumed. It is that resumed hearing with which we are concerned today.

The substantive decision

The Tribunal reached the following principal conclusions:(1) By concession, an appeal against a recommendation of dismissal made before 1 April 1991, when the school was delegated a budget, lay to the LEA and not to the School Governors. (Reasons paragraph 6).(2) The second Respondent, LEA ascertained the Appellant's true medical state, based on the medical reports obtained both by the Appellant and the Respondents.(3) The constitution of the internal appeal body could not be criticised, it was not tainted or otherwise prejudiced or biased.(4) The earlier disciplinary and grievance proceedings had been resolved by the time of the Appellant's dismissal.(5) The Appellant was asked whether he wished for alternative employment to be sought for him. He declined that invitation through solicitors.(6) On the medical evidence the Respondents reasonably concluded that the Appellant was permanently disabled from teaching.(7) The dismissal on grounds of capability was, in the circumstances, fair.(8) An order for Respondent's costs in the sum of £490 was made against the Appellant. It seems that at a pre-hearing review held on 12 January 1995, he had been ordered to pay a deposit of £100 on the grounds, presumably under Rule 7 of the Tribunal Rules of Procedure, that his application had no reasonable prospect of success.

The appeal

In this appeal, Mr Moroney takes four separate points, we shall deal with each in turn.1. He complains that at the substantive hearing, a letter was produced to the effect that he had not paid the £100 deposit ordered on 12 January 1995. In the event it turned out that he had indeed paid that sum and no further point was taken on his being in a position to continue with the complaint. He accepts that no member of the Tribunal which sat on the pre-hearing review set at the substantive hearing. However, he submits that by extension Rule 7(9) of the Tribunal Rules which provides:
"No member of a Tribunal which has conducted a pre-hearing review shall be a member of the Tribunal at the hearing of the Originating Application."
Can be extended to exclude any information relating to the order made at the pre-hearing review from being considered by the substantive hearing Tribunal.We have considered this point carefully in the absence of any authority. It seems to us that the scheme of Rule 7 does not provide, as is the invariable practice in the Civil Courts and equivalent provision to the Rule in those Courts, that a judge shall not be informed of any payment into Court made in the case which is being tried. We can see no grounds for concluding that the eventual Tribunal hearing the substantive case should not be informed of any order made at the pre-hearing review.Further the Chairman was asked to comment on this aspect of the appeal and his letter of 9 September 1997 reads in part as follows:
"I confirm that the Tribunal was told that the Applicant had been required to pay a deposit, I do not remember the exact amount at a pre-hearing review. This information was volunteered by the Applicant both orally and in correspondence. I do not remember if the correspondence was inter partes or between the Applicant and the Office of Industrial Tribunals. The Clerk to the Tribunal did produce at the hearing a copy of a letter requiring the deposit to be paid, I believe that this copy was produced to the Applicant at his request. The contents were made known to the Tribunal."
It follows in our judgment that the first ground of appeal fails. We should add that the fact that a query arose as to whether or not the Appellant had paid the deposit, does not in our view cast any aspersions on his character as he submitted. Particularly in circumstances where it was established that he had indeed made the relevant payment.2. He submits that at the pre-hearing review on 12 January 1995, he was faced by five representatives from the LEA, a barrister and his assistant, a solicitor from the authority and two senior members of personnel. He argues that there was a duty on the LEA's team, not to mislead the Tribunal, in particular, as to what he described as an ultra vires act on the part of the authority. In support of that submission, he relies on the case of Esso Petroleum v Marden [1976] 2AER 5. This ground of appeal raises a point which has recently been dealt with by the Court of Appeal in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 . What Mr Moroney seeks to argue is that his internal appeal should under the relevant Education Act have been heard not by a committee of the LEA but by the Governors of Eastwood School.However, as we observed when summarising the Tribunal's findings in this case, it was conceded on behalf of the Appellant that an appeal lay to LEA in this case. Mr Moroney has explained to us that the point arose during the course of the hearing. There was a five minute adjournment, he discussed the point with his representative, Mr Locke and they agreed to, as he put it, go under the old system, that is to accept that the appeal lay to the LEA committee.In the light of the Jones decision we can find no exceptional circumstances which would justify the reopening of that point which was conceded below. In these circumstances, we think the second ground of appeal also must fail. But returning to the bono fides of the Respondents' representatives, we are in no position to say that they took a false point deliberately, the point having been conceded on behalf of the Appellant.3. He seeks to challenge the finding by the Tribunal that the members of the sub-committee who heard his appeal on 17 April 1991, were not in some way tainted. He took us to questions which he raised at a meeting of the Policies and Resources Committee of the local authority, both on 9 October 1990 and subsequently on 4 December 1990. It seems to us that this is an attempt to reargue the question of bias on the part of the appeal panel, a point which was fully argued below and on which the Tribunal accepted the evidence of Mr Hetherington who was present at the deliberations of that sub-committee, rather than the suggestions of bias advanced by the Appellant. Our jurisdiction is limited to correcting errors of law, we cannot retry factual issues.4. The medical evidence . Mr Moroney has referred us to the judgment of Phillips J in East Lindsey District Council v Daubney [1977] ICR 566 and seeks to argue that the Tribunal erred in law in finding that the Respondents acted reasonably on the basis of the medical information before them and consultation with the Appellant in concluding that he was permanently unfit for further employment. In that case, Phillips J gave this guidance at page 572, A-B:
"But if in every case employers takes up steps as a sensible according the circumstances to consult the employee and to discuss the matter with him and to inform themselves upon the true medical position, it would be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware and which will throw new light on the problem or the employee may wish to seek medical advice on his own account which brought to the notice of the employer's medical advisers would cause them to change their opinion. There are many possibilities only one thing is certain and that is that if the employees is not consulted and given an opportunity to state his case an injustice may be done."
Bearing that guidance in mind, it seems us that on the facts of this case the Tribunal were entitled to reach the conclusion which they did. The Appellant provided his own medical evidence from Dr Killala, the LEA then obtained a report from their medical adviser Dr. Coe, the matter carried on over a considerable period of time. At the end of it, it seems to us, the Tribunal were entitled to conclude that the Respondents had acted reasonably in reaching their conclusion as to his medical state and its prognosis.Those are the four points advanced in support of this appeal. Our task at this resumed preliminary hearing is to determine whether or not there is any arguable point of law or points of law to proceed to a full appeal hearing. In our judgment there are not and it follows that this appeal must be dismissed.