MR N B N’GUM v THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON [2001] UKEAT 188_01_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 188_01_0811Case No Appeal No. EAT/188/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N B N’GUMAPPELLANTTHE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTONRESPONDENT
Before
Mr Recorder UnderhillDate 8 November 2001
[1]APPEARANCES For the Appellant MR S OLANREWAJU (Appellant's Representative) MR RECORDER UNDERHILL QC : This is the preliminary hearing of an appeal against the decision of an Employment Tribunal at London North sent to the parties on 19 January 2001. Because argument was not completed until late in the evening (as a result of a heavy list earlier in the day) we have, unusually, reserved our decision: that is not an indication that the case is one of unusual difficulty, but we have wished to deal fully with the points raised by the Appellant.[2]The Appellant was employed as a teacher and Staff Development Co-Ordinator at Moreland Primary School on 7 April 1997. At an early stage in his employment there was an incident when he was attacked by a child. The child was not expelled. The Appellant had ten days off sick in the course of the summer term 1997. In the autumn term he was off sick from 18 September 1997 and he did not return to work until 6 January 1999, when he came back on a phased basis under arrangements agreed at stage 2 of the First Respondent's sickness management procedure. The Appellant claimed that his ill health was in whole or in part the result of the incident in which he had been attacked.[3]In May 1999 there were two incidents involving another child. We should say, for the avoidance of doubt, that the evidence before us does not suggest any misconduct by the Appellant. On 17 May 1999 the Appellant went off sick again and never subsequently returned to work. He claims that his illness was precipitated by the two incidents and the way in which they were handled by the Headmistress of the School, Mrs. Goodman. The essential sequence of events thereafter can be summarised as follows:• On 15 June 1999 there was a stage 1 meeting under the sickness management procedure• On 9 September 1999 the Appellant wrote to the Headmistress in the following terms:
"I regret to inform you that I wish to retire on the grounds of ill health with effect from 31 December 1999. My application form 18 for 111 Health Retirement has been forwarded to Education Personnel." • On 27 October 1999 the First Respondent's Occupational Health Service reported that the Appellant was permanently unfit for employment and recommended medical retirement. • .On 5 November 1999 a stage 2 sickness management meeting took place. The Appellant attended, together with his union representative. The Headmistress was present, together with a representative of Education Personnel. The meeting noted the medical opinion that the Appellant was permanently unfit. The minutes continue: "
PM [the Appellant's representative] said it was the balance - on the one hand NN [the Appellant], his GP and Occupational Health were all saying he was permanently unfit so no-one was talking about NN returning to school and therefore a decision to refer NN to the Governors' Panel did not have quite the same unpleasantness. He said that however, for his notice pay NN would be back on full pay. He said that on the other hand it was sometimes better to be clearer about what was happening about the ill health retirement. SG [the Headmistress] said she fully appreciated NN's position but as manager of the school had to consider the position of the school if there was a delay or if NN's medical retirement application was not granted. She said that she needed to make provision for the children and for filling NN's post. She said that if she could say it would be clear by Christmas definitely then she would wait but unfortunately this was not the case." • A formal hearing before a panel of governors under the next stage of the sickness management procedure, at which dismissal was an option, took place on 14 January 2000. The decision was taken to dismiss. Notice was given by letter dated 17 January 2000, with effect from 31 January 2000. The dismissal letter stated:
"The Panel considered all the oral and written evidence presented very carefully. We decided that it was appropriate to dismiss you because we felt it was unlikely that your level of absence would improve. Therefore, we concluded that you are unable to provide a regular and effective service. Your absence has had a detrimental effect on the school and its ability to offer a high standard of education for the children."
At the date that his dismissal took effect the Appellant had been absent sick for over 115 working days continuously, in addition to the over 250 working days for which he had been absent between September 1997 and January 1999.[4]As noted above, at the time that the decision to dismiss the Appellant was taken an application for ill health retirement was pending. Although his letter of 9 September 1999 could, in isolation, be read as an unqualified resignation with effect from 31 December 1999, it is in fact clear from the context that it was intended and understood as an application to be granted ill health retirement with effect from that date. In the event, the processing of his application was not complete by the end of the year, but neither party regarded the Appellant's employment as having come to an end at that point: otherwise the decision to dismiss him with effect from the end of January would have been meaningless. That the Appellant recognised that he remained an employee after 31 December 1999 is evident from the fact that he appealed against his dismissal and brought the present proceedings claiming unfair dismissal (giving the date of 31 January 2000 on the IT 1 as the date that his employment ended). In the event, he was granted ill health retirement on 22 March 2000 and is in receipt of an ill health pension. We are not clear precisely how this was related to his dismissal seven weeks earlier, but nothing turns on that.[5]By an originating application presented to the Tribunal on 28 April 2000 the Appellant claimed:
"Discrim[in]ation on the grounds of race and threatening behaviour and attitude of mistrust against me at my place of work i.e. school environment and unfair dismissal due to systematic lies in perverting the course of justice."
It is clear that he was intending to make two distinct claims - one for racial discrimination arising out of how he was treated at the school, and the other for unfair dismissal.[6]By Extended Reasons sent to the parties on 18 January 2001 the Employment Tribunal dismissed both claims.[7]The race discrimination claim was dismissed because the Tribunal held that it was out of time. The Tribunal pointed out that the Appellant's dismissal was not in itself complained of as racial discrimination and that all the various matters of which he had complained under the head of discrimination had taken place prior to his going off sick on 15 May 1999: they had accordingly taken place well outside the three month period prior to the presentation of the complaint prescribed by Section 68(1)(a) of the Race Relations Act 1976 . The Tribunal considered and rejected the argument that the acts complained of could be characterised as a single act continuing over a period culminating in the Appellant's dismissal. It held that there was no material before it that would justify extending the time limit under Section 68(6) of the Act. Its reasoning on these points, set out at paragraphs 33 to 40 of the Extended Reasons, seems to us to be unimpeachable and is only very indirectly challenged by the Appellant: see paragraph 20 below.[8]As for the unfair dismissal claim, the Tribunal dismissed it essentially because it was plain beyond argument that the Appellant's sickness absence was unacceptable and that on the evidence before the Respondents he was not going to get any better. The Tribunal held that the Respondents followed all the correct procedures. Subject to the points made by the Appellant with which we deal below, this was in truth a very plain case of a reasonable dismissal.[9]The Appellant submitted a Notice of Appeal raising eight points in outline form. These were then amplified by a very full and carefully laid out document headed "Appellant's Amended Material Facts and Points of Law", which was in effect his skeleton argument. With the agreement of Mr Olanrewaju, who has represented the Appellant at this hearing (as he did below), we have treated this as the definitive statement of the Appellant's case. We have been through it with Mr Olanrewaju in order to ensure that we fully understand the points being made. We will follow the structure of the headings and subheadings in the skeleton. A. "Procedural and Substantive Errors" 1. "The Tribunal did not allow Applicant witnesses"[10]The Appellant claims that at the beginning of the hearing Mr Olanrewaju on his behalf asked for witness orders in relation to five "star witnesses" - all of them employees of the Respondents - and for any adjournment necessary for the orders to be given effect to. He says that that application was refused and that although two of the witnesses were in fact called by the Respondents and so available to him for cross-examination the Tribunal did not hear the evidence of the other three. This allegation has been put to the Chairman for her comments in accordance with the Practice Direction. She accepts that Mr Olanrewaju raised the issue of these witnesses (or at least four of them) but that after some discussion the question of any formal application was deferred and it was never renewed. We explored at the hearing the differences between the Chairman's account of what happened and the Appellant's. It is clear that real differences remain. In other circumstances it might have been necessary for us to resolve the apparent dispute as to what occurred at the hearing and to consider whether we needed any further assistance from the Chairman or the Respondent's representative in order to do so. But we do not believe that that is necessary here. Whatever the precise sequence of events, there are two points which seem to us decisive against this ground of appeal:(1) Even if the Tribunal did indeed refuse to adjourn the hearing in order to permit the "missing" witnesses to be compelled to attend, it is hard to see how that exercise of its discretion could be said to be unlawful. It would have been a very serious matter to incur further expense and delay in order to permit the calling of two (or three) witnesses in respect of whom no previous application for a witness order had been made.(2) In any event, and decisively, the witnesses who were not called were - as we confirmed with Mr Olanrewaju - relevant only to the case of racial discrimination, in respect of which the Tribunal had, on its findings, no jurisdiction because it was out of time. 2. "The Tribunal allowed the Respondent witnesses"[11]This, as Mr Olanrewaju acknowledged, is simply the other side of the complaint considered above - the point being that it was unfair for the Respondents to be allowed to call their witnesses when the Appellant was not to able to call the witnesses whom he wanted. It does not therefore need to be separately considered. 3. "The Tribunal allowed all the Respondent witnesses to remain in Court despite the fact that similar or the same questions were put to the witnesses. The Chairman's attention was drawn to this but did nothing"[12]It is not the normal practice in the Employment Tribunal for witnesses to be excluded while other witnesses are giving evidence. Such an order may be made in exceptional circumstances; but we see nothing to suggest that the Chairman erred in law in refusing to make an order in the circumstances of the present case. 4. "Fight broke out during the hearing but the Chairman encouraged it by doing nothing to prevent it although the Respondents part used racial overtones and gestures"[13]The Chairman in her comments denies that there was any "fight"; and on our exploring the matter with Mr Olanrewaju it appears that the Appellant was not meaning to refer to a fight in the literal sense but only to an expression of ill temper and hostility from one of the witnesses, which - he alleges - the Chairman did nothing to stop. We are content to assume for the purpose of this appeal that such an episode occurred, though plainly we are not in a position to make a definitive finding. How such incidents are dealt with is necessarily a matter for the discretion of the Tribunal, and the Chairman in particular; and only in the most exceptional circumstances would a Chairman's handling of such an episode be treated as giving rise to procedural unfairness. Nothing in Mr Olanrewaju's skeleton or oral submissions comes close to establishing that this was such a case. 5. " During the hearing Mr D Buckley. one of the Chairman's members. asked the Appellant to tell him his nationality, the place of birth and place of origin."[14]As to this allegation the Chairman comments as follows:
"The Chairman' s notes record that Mr Buckley asked Mr N'Gum where he came from and received the reply that Mr N'Gum was Gambian. The question was an entirely proper question when the issue for the Tribunal was the complaint of less favourable treatment on the grounds of race. In these circumstances the Tribunal needs to know the Applicant's place of origin in order that it can effect [sic] whether there is a difference in race or national origin. For this reason the Chairman saw no reason to stop Mr Buckley' s question which was needed to give the Tribunal evidence upon which to base its decision. The question was put entirely properly as a request for information and not as a challenge. Only one question was put by Mr Buckley on this topic. The answer was "
I am Gambian". No other question was put about the topic."[15]The Appellant in his skeleton does not challenge the factual accuracy of those comments but he submits that, contrary to the Chairman's view, the question was illegitimate because similar questions were not asked of the witnesses on the Respondent's side. We can see no error of law here. It is inevitable that the race, or national or ethnic origin, of an applicant is a relevant matter in a claim for racial discrimination: it is not necessarily a relevant matter as regards the witnesses. It is perhaps arguable that Mr Buckley's question was strictly unnecessary, since it appears that what the Appellant was alleging was discrimination against him as a black person rather than discrimination on the basis of any particular national origin. But the asking of an unnecessary question is of no significance unless it would convey to a reasonable observer a concern that the member of the Tribunal in question was prejudiced or otherwise unlikely to be able to approach the issues impartially. The facts here cannot possibly support such an inference. 6. "The substantive issues that the Tribunal ignored, which were undoubtedly before them are the concrete issue of "unfair dismissal " which was clearly laid down in the originating application was ignored and mistaken or another issue entirely ."[16]As expressed, and indeed as developed in the Appellant's skeleton, this ground of appeal is opaque. But it appeared from the oral argument that the Appellant's point - and in truth the main point on which the appeal was based - is that it was wrong for the Respondents to proceed to dismiss the Appellant on account of his sickness absence and ill health rather than to wait until his application for ill-health retirement had been processed; and that the Tribunal should on that ground have held the dismissal to be unfair.[17]It is not clear how explicitly the case was put this way before the Tribunal, but to the extent that it was, we can see no error of law in the Tribunal's rejection of it: on the contrary it seems to us, with respect to Mr. Olanrewaju, plainly wrong. The Respondents were faced with a situation in which they had a member of staff who had not been able to do his job for most of the previous 2½ years. That was plainly a deeply unsatisfactory situation and it is clear from the minutes of the meeting of 5 November 1999 which we have quoted above that they felt that it was essential to bring that situation to an end in the interests of the school. Given that it was common ground that the Appellant would not be able to return to work, the sooner his employment formally ended the better. Plainly, if the Appellant had been able to take ill-health retirement earlier no dismissal would have been necessary. But, as the minutes make clear, the Respondents could not be sure when, or even whether, the Appellant's application would be accepted: they made it clear that they could wait until the end of the year, but that thereafter it was necessary to proceed to the final stage of the sickness procedure. The Tribunal plainly took the view that that was a reasonable course, and so do we.[18]The Appellant appeared to think that dismissal on the grounds of ill health - in the words of the statute, on grounds of "capability" - involved some stigma. That is not right. Genuine ill health is a misfortune and not a matter for criticism. It cannot be right that an employer ought to defer an otherwise justified dismissal for ill health merely because the employee would prefer to proceed by way of "ill health retirement". It was also suggested to us that a dismissal on ill health grounds might have different consequences than retirement from the point of view of the Appellant's entitlement to benefits, so that there might have been some loss in the interval between January and March 2000 when his application for retirement was accepted. Mr Olanrewaju was not able to identify precisely how this impact arose. But in any event it would not - at any rate in the ordinary run of cases - seem to us to be a valid criticism of an otherwise fair dismissal for ill health that the employer should have deferred the dismissal for some further indefinite period in order to put the employee in a better position to claim benefits. 7-10 "The Respondent did not allow to the Appellant to bring the contract to an end" etc.[19]Each of these headings raises essentially the same point, although in various different formulations, namely that since the Appellant had already given notice of retirement with effect from 31 December 1999 any dismissal after that date was of no legal effect. This is, with respect to Mr Olanrewaju, obviously misconceived. As we have pointed out in paragraph 4 above, the letter of 9 September 1999 was not treated by either party as terminating the contract at the end of the year - and indeed, if it had been, it would not be open to the Appellant to bring the present claim. B. "The Employment Tribunal misunderstood the Race Relations Act 1976 ss l and 2"[20]It is not easy to ascertain from the Appellant's skeleton what point is being taken here. Insofar as it relates to his claim under the 1976 Act, it cannot be entertained in view of the Tribunal's finding on jurisdiction. It appeared from Mr Olanrewaju's oral submissions, however, that he was seeking to argue that it was wrong for the Tribunal to ignore in considering the claim for unfair dismissal the fact that the original cause of the Appellant's ill health was - as he maintains - the assault by a child in 1997, in respect of which he claimed that the Respondent was "negligent". But even if that were so it would not be material to the question of unfair dismissal: see London Fire & Civil Defence Authority v. Betty 1994 [IRLR] 384. C. Limitation[21]The Appellant puts his challenge to the Tribunal's decision that his claim for racial discrimination was out of time under several different heads. It is not easy to identify the precise points being made, but we can see no argument which has any impact on the Tribunal's reasoning outlined in paragraph 7 above. The Appellant complains that the Tribunal did not correctly identify the subsections or heads under s. 4 of the 1976 Act under which he was claiming; but, whichever head was applicable, that would not affect the question of when the "acts complained of" occurred. The Appellant also claims that the discrimination alleged was a "continuous act"; but the Tribunal was in our view plainly right to hold that none of the acts complained of occurred, or continued, after May 14 when the Appellant's second prolonged period of sickness absence began. The acts alleged might have had continuing consequences, but it is now clear law that that does not mean that they are continuing acts. The Appellant alleges that the Tribunal did not consider "the claim of indirect race discrimination": insofar as it is possible to identify the discrimination complained of, it seems to us to have been "direct" discrimination, i.e. discrimination within s. 1 (l)(a) of the 1976 Act, but how it is characterised has in any event no impact on the limitation question. D Statutory Provisions[22]In this part of the skeleton argument the Appellant simply identifies the key provisions of the Employment Rights Act 1996 under which his claim was formulated. There is no distinct point of law raised. E. Human Rights Act 1998[23]This section of the skeleton argument contains a number of general allegations that the Tribunal' s ruling was in breach of the Appellant' s Convention rights. Insofar as specific points are made, they are the same substantive points as we have considered above. Nothing is added by characterising them as issues under the 1998 Act. F. "The Points of Law that the Appellant raised were not investigated"[24]Under this heading the Appellant returns to his argument that his dismissal was of no effect because he had already resigned. We have dealt with this above. G. "The facts of the case were wrong1y recorded"[25]This section of the skeleton argument again raises the question of the Appellant's alleged prior resignation. H. "Many parts or facts of the case were not recorded altogether"[26]Despite the generalness of its wording, this heading is confined to a point of no significance whatever, namely that the title to the Tribunal's Decision records the case as being held at London Central whereas - the Appellant claims - it was held at London North: London North had in fact been renamed London Central on 1 July 2000. Conclusion[27]We have thought it right to deal in turn with each of the Appellant's arguments so that he should not think that any have been overlooked. But the plain fact is that he has advanced no argument which suggests, still less demonstrates, that this Employment Tribunal erred in law. We therefore dismiss the appeal.