MR PAUL GILLIATT v DEVON & CORNWALL CONSTABULARY [2000] UKEAT 1389_99_2411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1389_99_2411Case No Appeal No EAT/1389/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR PAUL GILLIATTAPPELLANTDEVON & CORNWALL CONSTABULARYRESPONDENT
Before
Mr Recorder BurkeLord Gladwin of CleeDate 24 November 2000
[1]APPEARANCES For the Appellant MISS S MOORE (ELAAS Representative) MR RECORDER BURKE QC The Appellant, Mr Gilliatt, appeals from the decision of the Employment Tribunal sitting at Exeter, promulgated on 21 October 1999 in corrected form, the original uncorrected reasons having been promulgated on 4 October 1999.[2]Although the Appellant's Originating Application appeared to allege only a claim in respect of disability discrimination, it seems that, at some stage, an unfair dismissal claim was, with permission, added to the Originating Application, but then stayed. However the decision now appealed against relates only to the Appellant's claim under the Disability Discrimination Act 1995 which claim the Tribunal dismissed. This is the preliminary hearing of Mr Gilliatt's appeal against that decision.[3]Mr Gilliatt was employed by the Defendants, the Devon & Cornwall Constabulary, as a civilian Evaluation Officer. His employment began on 17 August 1998 and ended in dismissal on 24 February 1999 with effect from 5 March of that year. So he was only employed for a period of some 6 ½ months. His complaint to the Employment Tribunal was that he had been dismissed by reason of his illness, that being depression. He was off work suffering from depression from 18 January 1999. His absence, he said, was certified within a few days by his General Practitioner, he was still off work suffering from depression when, on 24 February, he was dismissed by letter.[4]While the employers maintained that he had been dismissed because of serious shortcomings in his work, the Appellant maintained in his Originating Application that the real reasons for his dismissal were his illness, or absence from work because of his illness and the difficulties that that caused for his employers.[5]The Appellant did not attend the hearing before the Tribunal in Exeter. With his consent the Tribunal proceeded in his absence. We are told, and for present purposes accept, that the Tribunal knew that his absence was on medical advice. The Tribunal therefore had no live evidence from him; but again, we are told and are prepared for these purposes to accept, that he had sent to the Tribunal a statement which consisted, either in exactly the same form, or more or less the same form, of his Notice of Appeal to this Appeal Tribunal from page 2 onwards.[6]The medical evidence before the Tribunal about the Appellant's illness was, as the Tribunal said, vague. The Appellant had given consent for his medical records to be provided. They showed that in September 1996 the Appellant was seen by a mental health nurse, local to his home in Hull, because he was suffering from a psychiatric problem, which could well have been of a depressive nature.[7]In his application to the Respondents for employment, the Appellant filled in a medical history enquiry form, in which he said that he had mild depression in September 1996, which had been successfully treated, and that he had lost no time from work. There was no evidence before the Tribunal other than Mr Gilliatt's statement, insofar as that deals with it, that there was any further illness until he went off sick in mid January 1999. He had been off sick for some six weeks or so, it follows from the chronology that we have outlined, when his employment ended.[8]It was the Respondents' case, as we have said, that the termination arose because the Appellant's performance was seriously unsatisfactory. That is what the Appellant in his Originating Application accepts he was told when he was informed that he was dismissed. The dismissal letter of 24 February gave the same message. In his Originating Application the Appellant asserted that there had been no previous dissatisfaction with his work and he therefore inferred that the real reason for his dismissal was his medical condition. He did not put forward any direct evidence that that was so.[9]There was a bundle of documents put before the Tribunal by the employers. Because Mr Gilliatt was not there, he did not see that bundle when it was put before the Tribunal. There was no Order for discovery or disclosure of documents before the hearing, so far as we are aware; at least there is no record of such Order; it is not submitted on Mr Gilliatt's behalf that there was any such Order; and therefore so far as the Respondents were concerned, there was nothing improper about their producing the documentation to the hearing as they did.[10]Because Mr Gilliatt was not present, it necessarily follows that he did not have an opportunity to make any comment upon those documents that were put forward, seemingly for the first time on that day. The documents included a probationary report, part of which is dated in December 1998. That part appears to be mildly favourable to the Appellant. However a further part of that document, which is dated 5 February 1999, was very unfavourable.[11]By this time, Mr Gilliatt had produced, and it was said that it is the only major piece of work, or major report that he had produced during his employment, a report which was a review of the Constabulary's Air Support Unit. The probationary report dated 5 February 1999 said:
"Mr Gilliatt has actually 'produced' very little in his 5 months with the force. What he has - the Air Support Evaluation - is of such a low quality as to be useless."
On the previous page that report is described by the use of the adjective "dreadful".[12]On 1 February, Mr Gilliatt's report on the Air Support Unit was sent by Chief Inspector Page to Chief Superintending Cannings. That report described Mr Gilliatt's document, in these terms:- "the worst product I have ever seen produced by a member of the Executive Support Department" and "One of the worst presented documents I have ever read in my career" A report by Chief Inspector Brimacombe dated 12 February was severely critical of Mr Gilliatt's document. It says:
"I have discussed the quality of the report with Captain Hannant (the original sponsor) who states unequivocally that he could not accept the report in its present form"
[13]The Tribunal correctly directed itself that it had to consider two matters. The first was whether or not the claimant was suffering at the material time from a disability as defined in section 1 of the 1995 Act. Because of the vagueness and sparseness of the medical evidence before it, the Tribunal had considerable hesitation about the conclusion which it reached. But it eventually decided, on the balance of probability, that a disability within section 1, that is to say, a physical or mental impairment which has a substantial or long term adverse effect on ability to carry out normal day to day activities, was not made out. Although the Tribunal went on to say that further evidence might cause them to reach the opposite conclusion, which we suspect may have been a trailer for an application to review, no such application was in fact made.[14]The Tribunal, not surprisingly, because of its hesitation as to the conclusion that it was right to reach on the first issue, then went on to consider the second issue which it correctly posed, namely assuming that Mr Gilliatt was disabled within the meaning of the Act, whether he had suffered discrimination, that is to say whether the employers had treated Mr Gilliatt less favourably for a reason which related to his disability. The less favourable treatment complained of was, of course, the dismissal, it being Mr Gilliatt's case that he had been dismissed because of his disability, and his being off work as a result of that disability. So the Tribunal rightly concentrated on a factual question; namely, on the facts, was the dismissal by reason of Mr Gilliatt's illness and consequent disability, or was it, as the employers said, by reason of the unsatisfactory nature of his work. They made findings which we need not review as to the history and concluded, basing themselves on the documents put before them, that the dismissal was not connected with Mr Gilliatt's sickness, and therefore not connected with his disability, if contrary to their first finding, he was indeed disabled within the definition of the Act.[15]Miss Moore has appeared for the Appellant today under the ELAAS scheme, and has put forward arguments on behalf of Mr Gilliatt with skill, conspicuous ability and what in another world is called "shot selection" but in this world should be called "careful judgment". She has put forward arguments to demonstrate an arguable case that the Tribunal erred in law on both aspects of its decision. She correctly and fairly has agreed that, unless she can show that there is an arguable point of law on the second part of the Tribunal's decision, it matters not whether there is an arguable point of law on the first part of the Tribunal's decision, because the Tribunal had gone on from the first part of its decision to assume that there was a disability, and to consider whether or not the unfavourable treatment was linked to that disability. If it did not err in concluding it was not so linked, then whether the Tribunal was or was not in error in relation to its conclusion on whether there was a disability within the Act makes no difference.[16]Therefore we are going to concentrate on the second issue and assume, for present purposes, in Mr Gilliatt's favour, without going into any detail at all, that there are arguable grounds of appeal on the first issue. Miss Moore puts the argument on the second issue in this way: she firstly points out that Mr Gilliatt had no opportunity to see the documents which the employers put before the Tribunal for the first time during the hearing on the one day in September when the hearing took place. Her submission is that it was perverse and/or an error of law for the Tribunal not to give Mr Gilliatt an opportunity of seeing the documents and making his comments on the documents, either in writing or otherwise and thus being able to deal with the documents which, although Ms Moore did not so concede, it is obvious are, at first blush, adverse to his case.[17]Ms Moore goes on both to set out what points would have been open to Mr Gilliatt to make, if he had had the opportunity to make them, about the documents, and from that to make points about the way in which the Tribunal approached the exercise of deciding the facts on the second issue. Those two points almost entirely overlap because the criticisms which Ms Moore makes of the Tribunal's approach to its decision on the facts, on the second issue, are in raw terms the same as the points which she suggests Mr Gilliatt would have been able to put forward had he had the opportunity to do so.[18]In our judgment it is not possible to say that, in the situation in which the Tribunal was placed, it was an error of law for the Tribunal to fail to adjourn, and obtain Mr Gilliatt's comments. It is probably true that the Tribunal could have inferred, from what Mr Gilliatt had written, that either he did not have or had not had those documents. But there had been no application on his part for the case to be adjourned, should adverse documents appear; and we do not take the view that the law required, in every set of circumstances such as those which I have described, that the matter should be adjourned at the instance of the Tribunal to allow Mr Gilliatt to make comments on the documents. Mr Gilliatt had, admittedly on medical advice, decided not to attend and had consented to the proceedings continuing in his absence rather than seeking an adjournment because he was ill; and while nobody criticises him for a moment, he had, by so doing, implicitly consented to the Tribunal proceeding, in a normal way, to deal with the evidence produced by the Respondents whether oral or in writing, as it did.[19]Precisely the same position would have arisen if, for instance, the adverse comments upon Mr Gilliatt had been given, not in the form of documents, but had been given in the form of oral evidence by those who had looked at his report and who profoundly disagreed with its contents, or were profoundly critical of the way in which it had been put together. We do not therefore regard there as being an arguable ground of appeal simply because the Tribunal did not seek to obtain comments from Mr Gilliatt on the documents.[20]Ms Moore goes on to say, both as a criticism of the Tribunal's approach to the facts, and as a point which Mr Gilliatt would have the opportunity to have made, if he had been allowed the opportunity to do so, that in the statement addressed by Mr Gilliatt to the Tribunal, he had raised the suggestion or indeed put forward as a fact that Captain Hannant (who was the person within the Respondents who had commissioned the report that Mr Gilliatt had written, or was the sponsor of it) had read the final draft and declared himself happy with it. Ms Moore suggests that there was a document in which Captain Hannant had demonstrated his happiness, although reading Mr Gilliatt's statement carefully, we do not believe that he was actually saying that there was a document emanating from Captain Hannant. In any event what Ms Moore says is that there was a key conflict between what Mr Gilliatt was there saying, namely that Captain Hannant approved of the document, and the Respondents' case that the document showed, to put it mildly, serious shortcomings. Ms Moore argues that, faced with that conflict, the Tribunal had to address it specifically in its decision and had to make a specific finding about it. Again we do not detect an error of law on the Tribunal's part in this respect. The Tribunal was not obliged to go through each and every conflict of fact, or even every substantial conflict of fact in its decision in order to comply with its duty to produce a decision which followed the familiar principles set out in the case of Meek v City of Birmingham District Council [1987] IRLR 250[21]Furthermore, if they had addressed that issue, in our judgment, it is simply not arguable that there could have been any conclusion other than one conclusion: namely, that the overwhelming burden of opinion within the Respondents was that the report contained serious shortcomings. We have gone through the various documents in which Mr Gilliatt's report was criticised; we certainly do not wish to do him the disservice of going through them again. Looking at them overall, they contain a formidable, and, realistically, an unanswerable body of evidence, which must unerringly, in our judgment, have led to the conclusion that the Respondents believed, and reasonably believed Mr Gilliatt's report to be extremely unsatisfactory and therefore the standard of his work to have fallen below the level of satisfaction.[22]A second point which Ms Moore addresses in this area is the letter from Chief Inspector Page, at page 25 of the document bundle, to Mr Gilliatt, dated 1 February, in which he expresses the hope that Mr Gilliatt's health will improve, and that he will return to work at an early date, without making any comment about the inadequacies of Mr Gilliatt's report. Looking at the dates on which the various comments were made about the report, including Chief Inspector Page's comments on that same day, 1 February, it is clear that the criticisms built up from then to the point at which, by 24 February, the employers decided that they were entitled, on the grounds of unsatisfactory performance, to bring Mr Gilliatt's employment to an end. We see nothing inconsistent or even arguably inconsistent between the letter at page 25 of the bundle and the eventual decision of the employers on 24 February to act as they did. If, and we are far from convinced that it was even arguable that they had, the Tribunal made any error in relation to its approach to the facts, it seems clear to us that had they not made such error, they nonetheless would inevitably have come to precisely the same conclusion as that to which they eventually reached.[23]For those reasons we have come to the conclusion that there is no arguable way in which this appeal can succeed. It is thus dismissed.