MISS S L ADAMS v PICK EVERARD [2003] UKEAT 0074_03_0107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0074_03_0107Case No Appeal No. EAT/0074/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS S L ADAMSAPPELLANTPICK EVERARDRESPONDENT
Before
His Honour Judge Peter Clark Mr P GammonDate 1 July 2003
[1]APPEARANCES For the Appellant MISS S L ADAMS The Appellant in person For the Respondent MR ANTONY SENDALL (of Counsel) Instructed by: Messrs Harvey Ingram Owston Solicitors 20 New Walk Leicester LE1 6TX HIS HONOUR JUDGE PETER CLARK This is an appeal by Miss Adams, the Applicant before an Employment Tribunal sitting at Leicester under the Chairmanship of Mr J Blackwell, against that Tribunal's Decision, promulgated with Extended Reasons (EWR) on 26 October 2002, dismissing her complaints of unfair dismissal and disability discrimination brought against her former employer, the Respondent Pick Everard, a firm of architects, surveyors and civil engineers, by whom she was employed as an audio typist from 30 March 1998 until her summary dismissal on 18 September 2001. Background[2]The chain of events immediately leading to her dismissal began on 15 June 2001 when she reacted sharply to talk in the office of tiredness experienced by two pregnant members of staff. What she said was:
"I am sick and tired to death of you [Mrs Kapoor, her immediate supervisor] doing this, you know I cannot stand this talk and I know it's deliberate. If you don't think I am making a mental note of it all, then you have another bloody think coming."
Mrs Kapoor was reduced to tears, having been scared by the Appellant's reaction.[3]As a result of that incident Mr Collier, the senior partner, suspended the Appellant. There had been earlier incidents in January 2000, first when she was given a verbal warning for being disrespectful to a visitor (something which she disputes) and secondly a written warning from Mr Collier for leaving a derogatory message on the firm's answerphone.[4]Mr Collier contacted the Appellant's General Practitioner's surgery, having earlier obtained a medical report from Mr Fussey, Consultant Psychologist, dated 14 May and received on 6 June 2001.[5]A disciplinary hearing took place on 13 September 2001. The purpose of that meeting was to consider the events of 15 June. It was chaired by Mr Tiernan, a partner in the Respondent's firm. By the end of that meeting Mr Tiernan had reached the conclusion that dismissal was inevitable. In a letter of dismissal dated 18 September Mr Tiernan said this:
"Whilst finding that the incident in the post-room on 15 June [2001] did not amount to gross misconduct, having given the matter careful thought over the weekend I have come to the conclusion that your total failure to accept any blame for the incident, your accusations of victimisation (which I am convinced are unfounded), the hostility you have shown to virtually all other secretaries, and the absence of any practical suggestions as to how you would be prepared to work alongside others, means that there is, I believe, a total breakdown of mutual trust and confidence between us which makes your future employment by the firm impossible. I therefore have no option but to give you notice of your dismissal from the firm."
That passage effectively summarises Mr Tiernan's reason for dismissal.[6]An internal appeal to the managing partner, Mr Brunton, was heard on 3 October. It was a complete re-hearing. The appeal failed. Disability[7]An issue arose in the proceedings as to whether the Appellant was disabled under section 1 of the Disability Discrimination Act 1995 (DDA) . That issue was resolved in favour of the Appellant at a preliminary hearing held before a Tribunal chaired by Mr C J Goodchild on 23 May 2002. The Appellant suffered from mental impairment, first in the form of a germ phobia, secondly, a clinical depression, so that Tribunal found.[8]Her case under the 1995 Act was put in two ways; first, that the Respondent had failed to make reasonable adjustments as required by section 6 DDA . As to that the Tribunal found that the Respondent did not have the necessary knowledge, nor could they reasonably be expected to know of her disability. Consequently there was no failure to comply with a section 6 duty by virtue of section 6(6)(b).[9]However, the Tribunal went on to consider whether, had that duty arisen, the Respondent was in breach. They answered that question in the negative (EWR paragraphs 25 to 30). There was no failure to make reasonable adjustments had such a duty arisen.[10]Secondly, a breach of the section 5(1) duty. Here the Tribunal accepted that the Respondent had dismissed the Appellant for a reason relating to her disability. Prima facie discrimination was made out. However, they went on to consider the Respondent's defence of justification and they found that the Respondent's reason for the discriminatory treatment under section 5(1) was a combination of their fear that further outbursts by the Appellant might cause risk to other female members of staff, particularly those who were pregnant and the loss of trust in the Respondent on the part of the Appellant, evidenced by a number of matters listed at paragraph 33(c) EWR.[11]Applying the guidance to be found in the judgment of Arden LJ in Jones -v- The Post Office [2001] IRLR 384 they found that the Respondent's reason for dismissal was both material and substantial. Justification was made out. Consequently both limbs of the DDA claim failed. Unfair dismissal[12]It was an important part of the Appellant's case that she had been subjected to victimisation by her fellow secretaries. That contention was roundly rejected on the facts by the Tribunal. They concluded that her belief that she was a victim of a deliberate campaign of victimisation resulted from her mental impairment. Similarly, her grounds for distrusting the Respondent's management were imagined.[13]Applying the provisions of section 98 of the Employment Rights Act 1996 (ERA) the Tribunal concluded first that the Respondent had shown some other substantial reason for dismissal. The set of facts amounting to the Respondent's reason for dismissal were those set out in the extract from Mr Tiernan's dismissal letter, earlier recited.[14]Having found a potentially fair reason for dismissal the Tribunal proceeded to the question of reasonableness under section 98(4) ERA .[15]First they considered the question of procedural unfairness raised by Mr Lawrence Bruce, Counsel appearing for the Appellant below. The first point with which the Tribunal was concerned was the fact that the disciplinary hearing before Mr Tiernan began as an investigation of the incident on 15 June, a matter, which of itself, would not in the event have led Mr Tiernan to dismiss the Appellant, and then expanded into a wider examination of the whole of the employment relationship between Appellant and Respondent. However, the Tribunal concluded that such a development was largely brought about by the Appellant's own conduct at the disciplinary hearing. Further, any unfairness at the first disciplinary stage was cured on appeal; itself a rehearing rather than simply a review of the original decision to dismiss. Secondly, the Tribunal rejected a suggestion that the original dismissal decision was pre-judged at a partners' meeting held between 15 June and 13 September 2001.[16]Further, the Tribunal was satisfied that the Appellant's claim of victimisation, which they rejected on the facts, was fully investigated by Mr Tiernan and Mr Brunton and was not turned against the Appellant.[17]Turning to the substantive issue of fairness under section 98(4) ERA the Tribunal were guided by the approach of Phillips J in Turner -v- Vestric Ltd [1981] IRLR 23 (EAT), a case involving a personality clash between the applicant and her manager. The question is first whether an irremediable breakdown in trust and confidence had occurred and if so, whether every step short of dismissal had been investigated by the Respondent in order to effect an improvement in the relationship, here between the Appellant and her secretarial colleagues and the partners. The Tribunal answered both those questions in the affirmative (EWR paragraphs 41 - 42). Dismissal fell within the band of reasonable responses open to the Respondent. The dismissal was fair. The Appeal[18]Before us the Appellant appears in person; the Respondent is again represented by Mr Sendall.[19]We begin with two preliminary matters. First, Mr Sendall, who has presented the Respondent's case with conspicuous fairness consonant with his duty to the Court when opposed by a litigant in person, drew attention to paragraph 3 of the Order made by H H Judge McMullen QC in this case on 26 February 2003, allowing the appeal to proceed to this full hearing with both sides present. Paragraph 3 reads:
"Within 14 days of the seal date of this Order the appellant lodge with the Employment Appeal Tribunal and serve on the respondent the full opinion of Counsel from which the Notice of Appeal is derived, the Appellant having waived legal privilege [and in default of such lodgement and service the appeal be dismissed]."
[20]The Appellant complied with that Order. We interpose that the lengthy grounds of appeal, numbering five grounds in all, consisted of what are apparently extracts lifted by the Appellant from a written opinion given by Mr Bruce following promulgation of the Tribunal's Decision, together with certain comments of her own. Mr Sendall received a copy of Mr Bruce's opinion, of which he made no use and a copy was lodged with the EAT but not placed with our papers for this hearing.[21]Mr Sendall observes that it is at least arguable that in adopting passages from her Counsel's advice the Appellant was not in fact waiving privilege in respect of the whole of that document and he invited us not to read the Advice in full. We acceded to that invitation and have not called for Counsel's advice.[22]Secondly, by letter dated 5 March 2003 to the EAT the Appellant made application to adduce fresh evidence on appeal following paragraph 6 of Judge McMullen's Order, which referred to the Ladd -v- Marshall three stage test for the admission of fresh evidence on appeal, applied in this jurisdiction by Popplewell P in Wileman -v- Minilec (Engineering) Ltd [1988] ICR 318 . Again, that letter was not before us at the outset of the hearing but having been specifically drawn to our attention by Mr Sendall we considered the application.[23]The first of the three hurdles to be overcome by the Appellant is that the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal. Miss Adams addressed that point in her written application and accepted, in terms, that the material which she wished to adduce in evidence for the first time on appeal had been available at the Tribunal hearing below but that her Counsel chose not to put it into evidence. In these circumstances the credibility, relevance and potential effect of that evidence below becomes academic. She fails at the first hurdle and accordingly we declined to admit the new evidence.[24]We turn therefore to the five grounds of appeal on which this case was permitted to proceed to a full hearing, but before analysing each of those grounds and Mr Sendall's response it is necessary to say something about the Appellant's presentation of her appeal.[25]She is a litigant in person. She is not and does not hold herself out as having any legal training or experience. Indeed, she told us on more than one occasion that she cannot argue her case based on legal authorities; she does not know how to challenge the Tribunal's Decision on points of law. She is, however, utterly convinced that the Tribunal's Decision was wrong. To demonstrate that proposition she prepared a document running to one hundred and twenty typed pages which, having reserved our Decision, we have perused. Whilst admiring the industry and depth of feeling which has plainly gone into that submission it is, as we have endeavoured to explain to Miss Adams at the hearing, not our function to retry the factual issues so as to reach a conclusion which differs on the facts from that reached by the Employment Tribunal. Indeed, this measure of agreement may be discerned from the oral and written representations of the Appellant and the submissions of Mr Sendall; that the case turned on its own facts.[26]That said, the very full grounds of appeal do raise issues formulated as questions of law requiring our consideration. We shall deal with each of the five grounds in turn.(1) Did the Respondent establish a potentially fair reason for dismissal for the purposes of defending the unfair dismissal claim? It was the Respondent's case that there had been a complete breakdown in mutual trust and confidence between the parties to the employment contract and that reason for dismissal amount to some other substantial reason ( ERA section 98(1)(b) ). That was the reason for dismissal set out in Mr Tiernan's dismissal letter. The issue between the parties is summarised at paragraphs 10 - 11 EWR; the Tribunal rejected the argument, repeated at length in the first ground of appeal, advanced on behalf of the Appellant that the reason relied on by the Respondent was too vague to amount to some other substantial reason (EWR paragraph 34). Having considered the Tribunal's findings as a whole we can see no basis in law for impugning their conclusion that the section 98(1)(b) reason; the set of facts or beliefs known to the employer which caused him to dismiss the employee, was made out by the Respondent. We would add this; both in her comment section in the grounds of appeal (following paragraph 27 ) and in oral submissions the Appellant was at pains to stress that she vehemently refuted an allegation, recorded by Mr Collier in a manuscript note dated 15 June 2001, that she had threatened Ms Kapoor that day with a paper knife. It is clear that Mr Tiernan was not satisfied that such a threat had been made; hence he was not prepared to characterise the Appellant's behaviour that day as gross misconduct. Mr Sendall formally stated on behalf of the Respondent that it was no part of their case that the Appellant was dismissed for such conduct. It follows that the Appellant's understandable fear that this suggestion might stay with her when seeking new employment in the future can be allayed.(2) Did the Tribunal err in law in finding that the dismissal was "substantively" fair? The relevant findings by the Tribunal are set out at EWR paragraphs 40-41. By reference to the guidance in Turner -v- Vestric they concluded that there had been an irremediable breakdown in mutual trust and confidence and that every step short of dismissal had been taken by the Respondent to effect an improvement in the working relationship. Mr Sendall submitted that those findings of fact by the Tribunal cannot be properly challenged on appeal. We agree. The grounds of appeal, particularly paragraph 37, seek to challenge that finding. Bearing in mind the Court of Appeal guidance to be found in Yeboah -v- Crofton [2000] IRLR 634 we are quite unable to find that those findings were perverse in the true legal sense.(3) Was the Tribunal wrong in law to find that the dismissal was procedurally fair? The principal point taken in the grounds of appeal is a repetition of the submission made below and dealt with by the Tribunal at EWR paragraph 35; the change of tack by the Respondent during the disciplinary hearing from an investigation into an allegation of gross misconduct to an eventual dismissal based on a breakdown of trust and confidence. Whilst the point was well taken below we are unpersuaded that the Tribunal was not entitled to find: (a) that there was no material unfairness at the dismissal stage, or (b) if, there was, that procedural defect was cured on appeal by a complete rehearing at a time when the Appellant knew the case for dismissal laid against her.(4) Disability discrimination The challenge here is first to the finding at EWR paragraph 33(c), the Respondent's fear that further outbursts by the Appellant might cause risk to other female staff members, particularly those who were pregnant. It is submitted that finding is perverse because there was no finding of physical violence used by the Appellant on or before 15 June 2001. The short answer, we accept, is that given by Mr Sendall. The Respondent's fear was not of physical violence to other employees by the Appellant; rather the distress caused by verbal attacks. Secondly, it is said that there is no reference in the Tribunal's Reasons to the balancing exercise in considering justification to which I referred in Baynton -v- Saurus [1999] IRLR 604 , a case to which the Tribunal was referred by both Counsel. That is correct. Of course, the Tribunal need not, in their Reasons, refer to every case cited to them. More importantly they referred to and were guided by the judgment of Arden LJ in Jones -v- The Post Office , in the course of which, at paragraph 36, her Ladyship referred to the principle in Baynton . In her additional comments following paragraph 55 of the grounds of appeal the Appellant also challenges (a) the Tribunal's finding that the Respondent lacked the necessary knowledge for the purposes of section 6(6)(b) DDA and (b) their finding that there was in the alternative no breach in the employer's duty to make reasonable adjustments under section 6. We deal with the last point first. Those findings of fact by the Tribunal at EWR paragraphs 25 - 30 cannot be successfully challenged as a matter of law in our judgment. That, of itself, disposes of the further section 6 argument raised by the Appellant.(5) Perverse finding at paragraph 33(c) EWR . We have earlier referred to this part of the Tribunal's Reasons. It was Mr Tiernan's evidence, as the grounds of appeal record, that in his opinion were she to return to work the Appellant would present a threat to female members of staff. The Tribunal accepted that evidence, holding that it was a reasonably formed view, and that it went to the justification shown by the Respondent for the prima facie discriminatory dismissal. We can see no basis, applying Jones -v- The Post Office , for concluding that either the view of the employer, or that of the Tribunal, was irrational, or otherwise fell within the list of epithets collected by Mummery P in Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440 , 443. Conclusion[27]It follows, having considered the way in which this appeal is put as a matter of law and the Appellant's anxiety to have the facts retried that, doing justice between the parties according to law, we must dismiss this appeal.