MR I LAING v DEPARTMENT OF SOCIAL SECURITY [2000] UKEAT 829_00_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 829_00_0812Case No Appeal No. EAT/829/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I LAINGAPPELLANTDEPARTMENT OF SOCIAL SECURITYRESPONDENT
Before
His Honour Judge J Altman Mr P A L ParkerDate 8 December 2000
[1]APPEARANCES For the Appellant The Appellant in person JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Manchester over 8 days in November 1999 and March 2000. It comes before by way of preliminary hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal.[2]The Appellant took proceedings against his former employers, alleging unfair dismissal, direct racial discrimination, and discrimination in the form of victimisation, following complaints of racial discrimination by him.[3]The appeal concerns all the findings of the Employment Tribunal and we leave to one side, for a moment, the claim for unfair dismissal. The decision of the Employment Tribunal and their reasons covers some 40 pages and sets out in most impressive detail the broad history of the Appellant's employment with the Respondents.[4]In relation to the discrimination claim, the appeal raises a large number of issues. We have considered them all very carefully, but as the Appellant himself recognises the issues involved, it seems to us unnecessary to deal with each in turn, in detail. He criticises the Tribunal for making findings which he says are contrary to the prevailing evidence, in some instances, or ignores evidence in other instances, or is based on evidence that was not before the Tribunal and from all these failures, he draws an inference of bias.[5]To deal first of all with the allegation that the Tribunal was biased; in other words, some personal motive on the part of the Tribunal supervened over their decision so as to distort what their judgment and analysis would otherwise have dictated, and led them to a conclusion, which is not based on their own honest analysis of the evidence.[6]A Tribunal, of course, can be wrong without being biased; it can overlook evidence, and it can make errors of judgment, and therefore simply to say that a Tribunal was wrong, is not evidence of bias. We have seen no evidence to support an allegation of bias whatsoever, and we dismiss the ground of appeal on that basis, at this stage.[7]We then would wish to make some general observations. The first is that the process of fact finding is essentially a matter for the Employment Tribunal, and that is a process which involves collecting and assessing the evidence, and then going on to the next stage, which is to find the facts which that evidence proves. Of course, it is not appropriate for a Tribunal to set out all the evidence upon which they rely, and indeed, some authorities have suggested that there no need to mention any evidence.[8]This decision contains a most careful analysis of the evidence, so far as we can judge, on the face of it. Not only, of course, will an Employment Tribunal consider evidence, but it will interpret it, assess it, draw inference from it, and exercise judgment upon it in reaching conclusions as to what they found happened.[9]The understandable disagreement which the Appellant has, as a disappointed litigant, is that he argues really with the conclusions of the Employment Tribunal. He disagrees with their assessment of the evidence and their judgment which is based on what is said, tone of voice, mannerisms, impression, and all those other ingredients that form part of the exercise of fact finding which is such an important and difficult one in an Employment Tribunal. And, of course, none of those matters are appealable unless the approach of the Tribunal can be shown to be perverse.[10]The Appellant made a number of complaints as to the decision of the Tribunal. Two of those complaints relate to a transfer from Longsight to Openshaw, and assigning the Appellant to new duties, and suspending him. Those were considered in March 1995 by an Employment Tribunal on an earlier occasion. Those proceedings were finally concluded and the Employment Tribunal, in this case, determined those matters that had already been litigated, and would not be considered further, and there can be no appeal from those.[11]There then remained other allegations which we are bound to be selective in describing, and we only refer to them as a means of reference, and we should not be thought to be giving a conclusive description of all the matters being raised.[12]The first is an allegation of victimisation in that the Appellant's status was changed from "pending medical investigation" to "sick leave" and that being done, whilst the Respondents refused to explain and having refused him a return to the premises of the Respondents at Longsight, even though he had been allowed back before. That was coupled, so it was alleged, with ill-informed judgments from Dr Brown at the Occupational Health Section of the Respondents, based on his lack of direct knowledge.[13]The second allegation related to a failure to allow the Appellant to return to work in August 1995 and an alleged obstruction of his return, coupled with complaints by him as to his treatment by Ms Cavanagh at various stages. Thirdly, he alleged that he was victimised by being transferred to the Manchester office, and fourthly, that there was a victimisation that flowed from the unfair dismissal.[14]Many paragraphs of the reasons of the Tribunal are criticised in the Notice of Appeal and in the Particulars of Appeal. But it seems to us that all of them, in the end, are criticising the way in which the Tribunal reached its conclusions of fact and the judgments they made on the evidence, and we cannot see any point of law arising there from. Just by way of illustration, under paragraph 53 in his Notice of Appeal, when referring to paragraph 53 in his Particulars of Appeal, the Appellant said this:
"Mr Lawless evidence regarding the (Appellant's) conduct of the 24 March 1995 is disputed. The (Appellant) had given evidence denying he had done the things alleged by Mr Lawless - which were not corroborated by Mr Marley, notwithstanding he was present at the meeting."
He then says that:
"The conclusion of the Tribunal is flawed as it has omitted to mention relevant evidence by Mr Lawless - namely that he did not consider that the (Appellant's) suspension was an act of discipline."
[15]The Appellant then seeks to turn the Tribunal's own wording back on themselves by saying that their reasoning was "confused and garbled", adopting a phrase they had used against the stance of the Appellant, in relation to the period when he went on part-time work without, he says, wanting to agree to undertake only part-time type duties.[16]Again, under paragraph 55, for instance, he says, in terms:
"Mr Lawless assertions here …….are disputed"
And he seeks to maintain that a number of findings are not based on evidence, but what, on examination that means, is that it is not based on the evidence given on behalf of the Appellant, or by the Respondents in that part which is favourable to the Appellant's case.[17]There is another matter also, which we can illustrate. The Employment Tribunal attribute to the Appellant his view that there was a management conspiracy against him, whereas he is at pains to point out, in his Notice of Appeal, that he made allegations against specific named managers and did not allege a conspiracy. But they, it seems to us, used that word in a non pejorative sense, and there was evidence from management witnesses, that that was their perception of what the Appellant was saying, and it seems to us, for instance, under paragraph 58, that that sort of issue relates not just to the plain evidence that is given, but to the interpretation that the Tribunal placed upon it.[18]In paragraph 58, on page 19 of the judgment, they make this finding:
"….he (the Appellant) agrees that he had openly suggested on many occasions after the start of those proceedings that the respondents managers were victimising him and conspiring together to do so."
It may be that the Appellant had not used the word "conspiracy" - we do not have all the Notes of Evidence before us to test it, and we accept, for the purpose of this finding, that that is correct. But there is nothing to prevent the Employment Tribunal, on the evidence they had, from putting that interpretation upon what was being said.[19]We have come to the conclusion overall, therefore, that whilst we recognise that the Appellant disagrees with many of the findings of fact, and that in so disagreeing, he is able to point to pieces of evidence which are contrary to the findings of the Tribunal, that does not raise a point of law upon which an argument can be based to undermine the overall decision of the Employment Tribunal, in relation to discrimination.[20]We say that because the very exercise upon which the Tribunal were engaged was to balance and evaluate evidence, and to select some evidence against other evidence which may have competed (against) or contradicted it. And we therefore dismiss the appeal in relation to discrimination, at this stage.[21]We are indebted to Mr Laing for the very helpful and clear way in which his arguments have been presented, both on paper, and orally, and in particular, in his oral submissions. He focused on the finding of unfair dismissal, which we have concluded does raise an arguable point of law, such as to merit full argument.[22]The dismissal followed a period of absence from work, and on the face of it, there were issues about the presentation of medical certificates; the Appellant himself, saying that he was unable to do so because at the time he had no doctor. It is not necessary or appropriate for us to go into detail about that argument. The relevant paragraphs as to what happened begin on page 30 of the Tribunal's decision when, through discussions with Mr Powell, a disciplinary process began to emerge in about February 1996, when it appears from paragraph 97 of the decision, and the request to the Appellant to justify his absence by the production of medical certificates, that Mr Powell was reported as saying that if he did not hear from the Appellant, or the Appellant did not resume duty by 14 February, the Respondents would have no alternative but to consider his unauthorised absence as grounds for terminating his employment.[23]There was, on the finding of the Tribunal, a history of reluctance on the part of the Appellant for his medical position to be disclosed, except in a very limited way. It appears, therefore, that when the person conducting the final disciplinary process which led to dismissal, Ms Anderson, came to exercise her judgment about the matter, she did not have before her up-to-date medical certificates.[24]Secondly, in relation to this, it appears that in January 1996, in relation to the explanation of the Appellant's not being able to provide medical certificates, he was told that these were required, and he was given advice about registering with a new General Practitioner and Miss Oo was recorded by the Tribunal as suggesting that the Staff Welfare Officer would be able to advise the Appellant. It appears that the Appellant then wrote to Dr Brown, but it is not apparent that he then became involved thereafter, although he may, or may not have had good reason for it.[25]The Employment Tribunal then came to deal with the question of the dismissal in paragraph 115 of their decision. They came to the conclusion that dismissal related to conduct, for failing to report for work, or to provide medical certificates, and they then applied themselves to the question of unfair dismissal, specifically, in paragraph 20. But one of the features of the dismissal process was that Ms Anderson did not have the full medical history, before she made her decisions.[26]It may be that at that time, if the Appellant were suffering from any illness, the nature of that illness itself would have contributed to the Appellant's own judgment as to the extent to which he was prepared to provide material - it is not like, for instance, a broken leg. The Employment Tribunal then focused on the fact that Ms Cavanagh, who knew a great deal about the medical history made the judgment not to disclose that to Ms Anderson, and in paragraph 120, the Tribunal describe why. At the top of page 39, they say this:
"Was it reasonable for Ms Cavanagh, who knew of the previous events, not to suggest to Ms Anderson or Mr Powell that Dr Brown's opinion should be sought before the dismissal?"
[27]The point of law that we identify is this: as a matter of law, did the Tribunal have to ask itself "was the employer reasonable in treating the absence of work, without a certificate, as the reason for dismissal?" Has the Tribunal erred by asking itself the wrong question, namely whether Ms Cavanagh was reasonable in not disclosing information to Ms Anderson, because the consequence of Ms Cavanagh exercising the judgment in the way she did, effectively, was that dismissal was inevitable. And in those circumstances, would the position have been different if Ms Anderson had had the full picture? If that is the case, is it sufficient, in this case, for the Tribunal to have answered the statutory question by simply considering the decision of Ms Cavanagh, whether or not to disclose information? But was there a broader management responsibility to have been considered? Was the dilemma, in which Ms Cavanagh found herself, something which the employer, through her, had a duty to resolve in a more detailed way, than simply thinking that she was doing her best for the Appellant?[28]In those circumstances, it seems to us, that the matter should go forward to a full hearing. The end result was that the dismissal decision was based on incomplete information, when the Respondents, as a body, had that information available within their organisation. There is the subsidiary matter, about the position of Dr Brown, as an issue of fact. He also did not become involved, in spite of the requests of the Appellant, so it seems, on the findings of the Tribunal.[29]This issue was also considered by the Civil Service Appeal Board, as appears from paragraphs 120 and 121 and following, in the Tribunal's decision. They came to the conclusion that there was an unfair dismissal, with 100% contribution. We are mindful of the fact that, even if the Appellant is successful on the points of law, and even if, at the end of a long line, there is a finding of unfair dismissal, it may turn out to be a Pyrrhic victory. That is something the Appellant may wish to consider. But at the moment, he stands with a record, that at some stage in his past, he was dismissed for misconduct, and that may be something that concerns him.[30]For all those reasons, therefore, and on the single ground that we have identified, this matter will proceed to appeal. We ask the parties to submit Skeleton Arguments confined to that ground, not less than 14 days before the day of the hearing, and it will be listed in Category C for half a day.