MR P MCCANN v LEGAL SERVICES COMMISSION [2003] UKEAT 704_02_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 704_02_1401Case No Appeal No. EAT/704/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P MCCANNAPPELLANTLEGAL SERVICES COMMISSIONRESPONDENT
Before
His Honour Judge J Altman Mr D Chadwick Mr D NormanDate 14 January 2003
[1]APPEARANCES For the Appellant Mr R Lambert Representative JUDGE J ALTMAN This is an appeal from the Decision of the Employment Tribunal sitting at London Central on seven days between October 2001 and March 2002. Five of those days were used for the taking of evidence. The appeal comes before us by way of preliminary hearing to determine if there is a case which can reasonably be argued in full before the Employment Appeal Tribunal. The Applicant has been represented by Mr Lambert who has provided detailed notes of appeal and representations on paper, and who has pointed to important aspects therein and made some additional oral submissions.[2]The appeal is against the finding of the Employment Tribunal dismissing the claims for unfair dismissal and unlawful disability discrimination. The grounds of appeal are essentially that first the Tribunal was perverse in that it reached a decision which no reasonable Tribunal, properly directing itself upon the facts and the law, could have reached, and secondly that the Employment Tribunal was biased in its conduct of the proceedings, and more particularly in relation to its approach to the evidence. The proposition of bias was summarised by Mr Lambert before us in the allegation that the Tribunal were only prepared to accept the evidence of the Respondents on the one hand and then dismiss the wealth of evidence on the other hand, effectively out of hand[3]In their Extended Reasons the Employment Tribunal set out at considerable length the facts which they found. The Applicant began work for the Respondents in March 1991 as an administrative assistant and no major issues about the performance of his work arose until 1994. However, thereafter, the Applicant Mr McCann, started to suffer from narcolepsy, which led to a deterioration in his attendance record. The extent of the condition does not appear to have been diagnosed at first, and, on the findings of the Tribunal, it was not until later that the full extent of this very severe and most unfortunate disability was identified in April 1998 when a medical report diagnosed the condition. The Tribunal describe it as leading to excessive day time sleepiness with the urge to sleep being difficult to resist and sleep attacks occurring without warning. Tragically it is a lifelong disability with remissions rarely occurring and it has the side-effect of cataplexy which is the sudden brief loss of muscle control, often set off by strong emotion and sometimes leading to total collapse. This is clearly a most debilitating disability. The Employment Tribunal appear to have had no difficulty in concluding that this was a disability for the purposes of the Disability Discrimination Act 1995 .[4]By the time of the diagnosis, there had been extensive absences and management had noted the tendency of Mr McCann to fall asleep. In the course of meetings about sickness absence Mr McCann had requested, on the Tribunal's findings, a change to post room work. The Tribunal found that there was sickness counselling and a reference to occupational health experts; management had agreed to be flexible both in relation to Mr McCann's need to take time off work and to the amount of work required of him. For his part Mr McCann undertook to inform management of absence needs wherever possible, and that he would be more thoughtful about the effect of taking time off at short notice. The Tribunal found that that was a sympathetic response to the problems being faced. The Tribunal also found that also in 1997, Mr McCann raised a grievance over his pay and was informed by his line manager that the jogging bottom trousers that he wished to wear at work were not acceptable.[5]Between May and August 1998 Mr McCann was absent from work due to an arm injury which the Employment Tribunal found was not related to narcolepsy. They based that finding on the fact that at the time of the injury, according to the findings of the Tribunal, both parties treated the injury as unrelated to Mr McCann's disability. The pay issue was raised again which led to an adjustment upwards in the money paid to Mr McCann. The Employment Tribunal then scheduled the additional days off work that Mr McCann had from October 1998, and the meetings that took place with management about his problems. Management recognised, on the findings of the Tribunal, the need for Mr McCann to have fresh air and agreed to a change of duties so he could spend less time in the post room, which Mr McCann complained was stuffy. A disciplinary hearing about absence was postponed on the intervention of Mr McCann's MP.[6]The Tribunal found that Mr McCann had made a request to work part-time and subsequently made a request for a workplace assessment. In March 1999 it appears that the Respondents were writing to the effect that reasonable adjustments were being investigated, as was part-time work. A medical report was obtained as a prelude to the workplace assessment. It indicated that the assessment would be helpful, but that Mr McCann was not permanently incapacitated. The Employment Tribunal note, however, that Mr McCann had by then been placed on the Local Authority Disabled Persons Register. Dates were of some importance. The medical report was sought on 19 April, something like a little over a month after the application for the assessment had been made, the medical report took about five weeks; the workplace assessment was sought just over three weeks later, and took place about two weeks after that. The Employment Tribunal found, contrary to the submission on behalf of Mr McCann, that there was not an undue delay in the assessment.[7]The Employment Tribunal then considered the part-time request and the way it was handled by the Respondents, considering a twenty five, twenty or fifteen hour week. They found that Mr McCann wanted to do twenty five hours; they rejected the proposition that the Respondents were forcing Mr McCann to any particular number, although they found that the Respondents were alive to the tax implications of taking Mr McCann, by increasing hours, over the tax threshold, so as to provide a diminishing return for him for his labour. They found this was a genuine attempt by management to make the best arrangements possible and rejected any consideration that it was a device to delay matters or cause difficulties. During this period there were substantial absences by Mr McCann which delayed both the workplace assessment and determination of the part-time work issue. The Employment Tribunal found that the Respondents determined that it was not possible to make final arrangements until Mr McCann returned to work and the Tribunal found that there was careful and sympathetic concern for his financial position.[8]The Employment Tribunal found that on Mr McCann's return to work by November 1999, most of the recommendations in the workplace assessment had been implemented, including bigger fans, a bright desk lamp which was later provided, the pulling back of window blinds; the opening of windows, although this caused concern for workmates, the encouragement for Mr McCann to stand near a fan when feeling sleepy, the placing of ionisers. However there was the decision to not increase the wattage of the artificial lighting because of the well-being of other employees and the decision not to install a portable air-conditioning unit because it was stated that in an open plan office it would be of little effect. Mr Lambert has told us that, in due course, Mr McCann was not working in an open plan office. The Tribunal found that the Respondents went beyond the actual recommendations by providing Mr McCann with his own separate work station and a new chair was purchased in due course. The Employment Tribunal made a finding of fact that the non-provision of the increased wattage for lights and portable air-conditioning was done on advice which was clearly sensible or reasonable, and that all other recommendations had been implemented.[9]The part-time hours arrangement had also been implemented as the Tribunal found. However there was some problem over representation of Mr McCann in negotiations because his union representative, Mr Shrimpton had, according to the Respondents, been de-recognised. This led to some dispute and there were arguments about various aspects of the ongoing working relationship. There was also a non-payment of wages under dispute based upon the Respondents' contention that in November 1999, Mr Mc Cann had been overpaid by oversight. The Tribunal found that it was unfortunate that pay had been stopped but that it was simply an error and that the Respondents never in the end recovered the amount overpaid in November.[10]Mr McCann was away from work for a number of days in 2000 with an ankle injury and a medical report was obtained on 26 August. On top of his pre-existing disability, he had been diagnosed as suffering from diabetes and he was called to a "disciplinary" hearing to consider a cumulative sickness absence since August 1998 of two hundred and sixteen days. This absence was to be dealt with under Stage 3 of the disciplinary policy, which Mr Lambert, on behalf of Mr McCann, says is unique in that it placed the employee at a stage when the disciplinary procedure is well advanced, without his having had the opportunity of earlier stages and less draconian steps. The Employment Tribunal found that this was because Mr McCann's position was found to be extremely serious by the Respondents, and because of what had happened generally they regarded the situation as having gone beyond the earlier stages. There does not appear to be any procedural requirement that prevents management choosing to initiate Stage 3 straight away. The Tribunal found:
"There had been extensive counselling, medical reports, and reasonable adjustments had been made without significant improvement. The Tribunal does not regard it as unreasonable in those circumstances to commence the disciplinary proceedings at Stage 3."
The procedure led to a final written warning. The Employment Tribunal noted that the disciplinary hearing recorded that:
"It was accepted on behalf of Paul that everything which could reasonably be done by an employer had been done by the [Respondents] although there was some current problem with the lighting where Paul worked which had not been reported to management. Tony Kramer on behalf of Paul said that Paul would make every effort to regularly attend the office …Tony Kramer has stated that Paul understands that the [Respondents] has done all that it can as an employer."
[11]There was then a Stage 4 disciplinary hearing, due to failure to attend the office on two days. The two reasons for absence were first, a pre-arranged medical appointment for which Mr McCann had not sought authority, and secondly, the need to take his father to hospital. There had been a further seven days ill-health due to the narcolepsy and associated problems. The conclusion at the interview was that the cumulative sickness absence and conduct were totally unacceptable and Mr McCann was dismissed. An appeal was rejected.[12]The Employment Tribunal conducted an analysis of comparative absences which had not led to dismissal so as to consider the argument being advanced of disparity in the treatment of Mr McCann. However, the conclusion of the Employment Tribunal was that:
"The evidence on behalf of the Respondent was that sickness cases were judged on their merits and we accept this."
[13]In other words, the Employment Tribunal accepted that each case was looked at on its own merits. No doubt one of the considerations in the mind of an employer is the extent to which there is any prospect of improvement for the future. In addition, the Tribunal considered the comparable position of Mr Britton, in relation to the way he was treated differently whilst having substantial absences as a result of a virus. However it is clear that the nature of his work, which enabled him to work from home, and the fact that he returned to work full-time made his position different in some respects from that of the Applicant.[14]In their conclusions, the Employment Tribunal turned first to unfair dismissal. They found that the dismissal was for the reason of conduct and went on to consider whether the Respondents were reasonable in treating that as the reason for dismissal, when viewed in the light of equity and the substantial merits of the case. They took into account the counselling, the final written warning, the fact that the last seven instances of absence must be viewed against the history of absence, the apparent disregard for the interests of the Respondents exhibited by Mr McCann when he was absent. They rejected the argument of inconsistency as between employees and noted the inability of Mr McCann to give assurances as to future attendance. They rejected that he had been singled out; they rejected the complaints about the procedure and found that broadly speaking, the procedure was fair and they found that the decision to dismiss was within the range of reasonable responses of a reasonable employer, and accordingly dismissed that application.[15]As to disability discrimination the Employment Tribunal considered the allegation of a failure to make appropriate adjustments under section 6(2)(b) of the Disability Discrimination Act . They referred to the workplace assessment, its implementation save as to lighting and air-conditioning, they referred to further assessments in relation to the provision of a chair, and the moving of the work station, and they referred to the opportunity for Mr McCann to work some part-time hours. They came to the conclusion that the Respondents had made all reasonable adjustments. They reasonably regarded the matters of recovery of over-payment, the issue about jogging bottoms, the arguments about representation, the payment of below the minimum wage, was not to do with disability. They found that the treatment of Mr McCann related to disability, in that respect it was remedied long ago and did not apply at the relevant time. They rejected the idea that there was a deliberate chain of conduct. They rejected the proposition that the protracted discussions were in themselves unlawfully discriminatory because they were related to practical matters of a normal procedural kind. They found that in relation to actions at work there was no unlawful discrimination and they went on to reject the proposition that the dismissal itself was unlawful disability discrimination.[16]Mr Lambert has provided a wide ranging Notice of Appeal. However, the essential argument advanced by the appeal in reality is to question the findings of fact of the Employment Appeal Tribunal by way of re-arguing all the matters that were before the Tribunal. In general terms it seems to us that the decisions to which the Tribunal came were those which could reasonably be based upon the evidence before them, although equally reasonable conclusions may have been available in relation to certain matters on a view of the evidence that would have satisfied the arguments of Mr McCann. Where there are two possible conclusions, one for one side or one for the other, from the same amount of evidence, then it cannot be a matter of complaint that the Employment Tribunal has chosen a conclusion that is favourable to the other side unless, of course, it can be shown that they did so with a degree of bias, as would appear to an independent and reasonable onlooker. We deal with some of the main contentions in the Notice of Appeal.[17]Mr Lambert complains that the Respondents did not make reasonable adjustments in relation to the failure to increase the lighting wattage or install a portable air-conditioner, pointing out that the absence of these things could have a severe impact on Mr McCann's disability. However, the word is "reasonable" and the Tribunal looked overall at the adjustments, took into account the reasons given by the Respondents, and rejected the contention which, it seems to us, on the evidence they were entitled to do. It may be for a large part of the time, the portable air-conditioner could have been used in a closed room. The Tribunal were entitled to come to the view that the adjustments were reasonable. Mr Lambert says:
"these other adjustments were eminently reasonable adjustments to make"
. However that is simply an attempt to re-argue the case.[18]The next and one of the most important matters that Mr Lambert argues about is the placing of Mr McCann on the Stage 3 disciplinary procedure without any preceding disciplinary steps. He says that is unique. But it seems to us the Tribunal were entitled to conclude that because of all the preceding procedural steps taken by the Respondents, it was reasonable for them to do what they did, even though it may have been unique. The fact that sixty six per cent of the absences preceded the making of any adjustments, as Mr Lambert says, was one of the facts to take into consideration when looking at the background and coming to the view the Tribunal did. It seems to us the Tribunal were entitled to do so. Complaint is made of the delay in making adjustments, but that is a matter specifically addressed by the Tribunal, and they were entitled to conclude as they did. The Tribunal is criticised for not taking account of the duty on public bodies to be pro-active and offer support, but they took the view that there were sessions of counselling initiated, even though there may be argument as to their true value or content, and they reached the conclusions they were entitled to reach in law.[19]Mr Lambert criticises the Tribunal for not regarding a comparison with another employee, Mr Britton, as comparing like with like. However, there were differences, to which I have referred, which entitled the Tribunal to reach the conclusion they did. There were differences between Mr Britton and Mr McCann. Whether or not those differences should have led to a different outcome may be a matter of argument and point of view, but it is clear that the Tribunal were entitled to come to the conclusion they did on the evidence. That Mr Lambert criticises the Tribunal for accepting what the witness, Mr Davis, has said about the matter, is really no more than to say that he disagrees with the view of the Tribunal. Because there may not have been other supporting evidence does not prevent the Tribunal from accepting that evidence that came from Mr Davis. It is true, as Mr Lambert points out, that there were points of comparison with Mr Britton, but it cannot be gainsaid that there were also points of distinction.[20]Mr Lambert has drawn attention to the very small amount of absence after the Stage 3 procedure, but has already identified that the Tribunal analysed that and came to a judgment upon it that they were entitled to do, namely that that period had to be judged in the context of what had gone before. Mr Lambert complained that there was a vicious circle in that delivery by courier to Mr McCann's home of disciplinary material on his birthday could only lead to further days off work caused by the shock and upset which were not Mr McCann's responsibility. That was all part and parcel of the sort of thing that the Tribunal no doubt took into account but it seems to us that this, although unfortunate, does not eliminate the argument that the Tribunal were entitled to adopt.[21]Mr Lambert draws attention to the failure of the Respondents to provide full details requested of them as regards Mr Britton and criticises the Tribunal for failing to strike out the Notice of Appearance. That relates to interlocutory matters and was within the discretion of the Tribunal. We cannot find on the material before us that the Tribunal were wrong to proceed with the substance of the application. This also relates to other non-disclosure of which Mr Lambert complains. He suspects that the Respondents may have concealed other examples but that must be regarded as purely speculative on the information before this Appeal Tribunal. Mr Lambert criticises the finding of the Tribunal as to the reason for dismissal, saying that it was essentially for absence because that is what led to his being on the Stage 3 final warning. However it is clear from the findings of the Tribunal that what converted that warning into a dismissal had, as a substantial element, the conduct and disregard for rules, as to seeking authority for absence to which they referred. Some may view the final response of the Respondents as being rather harsh in the circumstances. However, on the other hand, many cases have established that a respondent is entitled to say "enough is enough" even if the bulk of the problem is in no way the fault of the employee. The Tribunal were entitled, it seems to us, to find the reason for dismissal in the way they did and to have analysed the procedure leading to dismissal in the way they did.[22]We turn now to the allegations that the Tribunal was biased. We have had the opportunity of considering the response of the Chairman and Mr Lambert's response to that. Mr Lambert complains that he was prevented from some cross-examination of Christine Couchman, a manager. But this was a very long hearing indeed, evidence going over a number of days, and whilst a party, particularly without a lot of experience of Tribunals, who is conscientiously represented, may be surprised at limits being imposed on questions or material put before the Tribunal, the Chairman does have a discretion to control the proceedings in the way that at the time seems most expedient. It seems to us that in this case the Chairman was doing nor more than to seek to maintain the concentration of the evidence upon the relevant issues. Whether a matter that is cut out may have had some bearing on the issues, or whether it was wholly irrelevant, is a matter of judgment that must be exercised at the time in the context of a hearing that is going on from moment to moment. We can find no basis upon which to criticise the way in which the Chairman exercised his discretion in relation to the permission or refusal of particular aspects of the evidence.[23]A criticism is made as to the inaccuracies and inconsistencies and putting the Respondent's evidence in its best possible light. That does not appear to us, on a reading of the Decision, and the fact that there may, although we are far from certain, have been an error as to the quotation of the number of employees of the Respondents, this seems to us to have no bearing on the real issues of the case.[24]On the evidence we have heard and seen and on the findings of fact of the Tribunal, it does seem to us that the Tribunal were entitled to conclude that the Respondents tried to assist the Applicant, and we can see nothing strange in the way that this was referred to, as Mr Lambert suggested. The Tribunal were entitled to find that Mr McCann knew exactly where he stood, bearing in mind what was said on his behalf at meetings, and understanding the symptoms of his disability. It is nonetheless a matter of judgment for the Tribunal as to whether in spite of the disability, Mr McCann had that knowledge. Mr Lambert complains that the warning in October 1997 should not have been referred to as a further warning, but this has been explained by the Tribunal as referring to when Mr McCann was told he needed to be mindful to report absences, which it seems to us the Tribunal were entitled to find may be just the sort of conduct to attract a warning.[25]Mr Lambert complains that the Tribunal were wrong to distinguish the explanation for his wrist injury as given to the Tribunal, as against what he said at the time of the injury, for he sought to blame it upon his narcolepsy at the hearing and had not done so at the time of the injury. It may be that the Tribunal did not know or overlooked the fact that at some other time, between the injury and the Tribunal hearing, Mr McCann had mentioned that cause to management, but that does not affect to any great extent the distinction drawn by the Tribunal between what was said at the time of the injury and what was said later. Accordingly, whilst the Tribunal may have overlooked that there had in fact been an earlier time when Mr McCann had referred that injury to his narcolepsy, nonetheless, they were entitled to find a stark distinction between the reason given to them and what had generally been said at the time. Matters of judgment in relation to the reliability of a witness's evidence are very much the province of the Employment Tribunal and we have no hesitation in concluding that the Tribunal were entitled to conclude as they did in this context. Mr Lambert puts forward another reason, namely that the growing understanding of his disability has led Mr McCann with the passage of years to understand better what caused him to collapse and injure his wrist as opposed to striking a cupboard with it, and indeed we would add that it may be that upset and anger and emotional release are also symptoms of his disability. However these were matters of fact before the Tribunal and they were entitled to choose available and competing interpretations that were reasonable. The degree of emphasis to be placed upon it was exclusively a matter for them and we see no basis for alleging that all they were doing was seeking an opportunity to condemn Mr McCann as lying under oath or as exemplifying a jaundiced opinion on their part. Again, it seems to us that when Mr McCann used the phrase "chit-chat" to describe his view of meetings the Tribunal had to consider whether, in effect, he was doing that as a means of seeking to brush them aside and explain why he did not bother about them or whether, on the other hand, there was an explanation such as Mr Lambert refers to, namely that it was a trivial and unimportant use of words. Again, this is a choice of interpretation and it seems to us the Tribunal were entitled to adopt the interpretation they did.[26]Mr Lambert complains that the Tribunal in every instance put a positive "spin" on management's actions. Again, the Tribunal were entitled to find that the Respondents agreed to a change of duties to permit the Applicant to spend less time in the post room. There may have been competing evidence which they had to reject. The whole process of judgment in an Employment Tribunal, as elsewhere, involves the rejection of some evidence and the acceptance of others but it does not seem to us that one can go beyond the conclusion that Mr Lambert, understandably, does not agree with the interpretation of the Tribunal.[27]It is clear that there were periods of delay and the Tribunal had to decide the cause of that. On the one hand it may have been said that this was deliberate prevarication on the part of the Respondents, hoping to some extent to build a case for his dismissal through the continuing disability of Mr McCann. On the other hand it may be that the procedures, sometimes a bit dilatory, were being taken genuinely and reasonably to try to sort out what the Respondents, on any view of this case, were finding a very intractable matter. That the Tribunal chose the latter interpretation does not in itself, it seems to us, give rise to any conclusion of bias but simply that they were exercising their normal judicial function in determining which evidence to accept and which to reject. Whether particular periods of work had tax advantages or not, is of course a matter of opinion and likewise whether the amount of tax makes it worth or not worth doing the job. But they were entitled to find, it seems to us, as a matter of fact that this was one of the Respondents' concerns. It may be that the continuing large number of hours did exacerbate Mr McCann's illness but it does seem to us that this was adverted to by the Tribunal and taken into account with all the other facts in this case.[28]Mr Lambert criticises the Tribunal's finding that there was no undue delay in respect of the workplace assessment. Again that is a matter of judgment and opinion and it does not seem to us that the delay was so inordinate and extraordinary as to mean that a Tribunal's finding that it was not an undue delay was perverse and a finding that no reasonable Tribunal directing itself could reach. Whilst another form of assessment, perhaps by the Employment Service, could have been done more quickly, that was a factor that the Tribunal took into consideration and referred to specifically as one of the factors they took into account. But, as in all other issues in this case, the Tribunal had to balance sometimes competing or inconsistent evidence and determine which they accepted and the effect of one on the other. The fact there was that opportunity for a two-week assessment does not completely overwhelm all the rest of the evidence explaining the delay in the actual assessment. It is just one factor to be taken into account. This, it seems to us, is what the Tribunal did.[29]The Tribunal made findings that the majority of improvements had been implemented and it seems to us simply a matter of opinion whether what remained was a large part or a modest part of the whole. In any event, the finding in that respect does not seem to us to affect the matter very greatly. It may go to the issue as to the continuing absence of Mr McCann being due to circumstances beyond his control and possibly caused by the Respondents, but the Tribunal, it seems to us, were entitled to categorise the amount of improvement in the way they did. Mr Lambert reiterates his points about the increased wattage for lights and the air-conditioner, to which we have already referred.[30]The Tribunal, it seems to us, were entitled to conclude as they did that there was a beneficial reason, so far as Mr McCann was concerned, for not reducing his hours whilst he was absent, even though there may be an opposite point of view which Mr Lambert would have wished the Tribunal to adopt.[31]The absence of the trade union representative of his choice was a management judgment which the Tribunal were entitled to find had nothing to do with disability. The disability may have made it harder for Mr McCann to proceed, but he had substantial and senior representation from his union and it seems to us no point arises on that.[32]That there was a mistake over the withholding of pay, is a matter that the Tribunal addressed together with its unfortunate consequences; that does not lead to the inevitable conclusion that the Respondents are to be blamed. Clearly the consequences were most unfortunate, but the Tribunal were entitled to reach the decision they did. So far as the payment of wages over the Christmas period is concerned, the Notice of Appeal is simply an attempt to re-argue the case which has already been assessed by the Tribunal.[33]The Tribunal was criticised for ignoring the vulnerability of Mr McCann, and the damage that the Respondents' actions had on his health. We disagree. They took that into account but they were also entitled to assume a realistic view of certain aspects of his evidence and come to the conclusion that not all the evidence had to be concluded in his favour. They were entitled to take an unfavourable view about being absent without leave; however tragic the circumstances of family problems may have been for Mr McCann at the time, this was a matter of judgment for the Tribunal. Mr Lambert complains that the Tribunal accepted management's version of events surrounding the Stage 4 hearing, but the choice between the two parties' versions which conflict was a matter for the Tribunal. We find nothing perverse in their choice of the Respondents' version. It may be unfortunate that notification of the Stage 4 disciplinary hearing arrived on Mr McCann's birthday, but the facts appeared to themselves, as found by the Tribunal, and were dealt with at that hearing. The Tribunal assessed the fairness of that procedure and viewed the matter, as they were entitled to do, broadly. The assertion that the Stage 4 appeal and the disciplinary procedure was a charade at the Respondents' operation, and that everything is predetermined, may be Mr Lambert's opinion, but there is basis upon which, it seems to us, the Tribunal should inevitably have felt themselves driven to adopt that opposite opinion. It frequently happens that someone, such as Paul Davis in this case, played some part in an earlier procedure and a larger part in a later one. Absolute divisions and separations are not always possible in disciplinary procedures and the Tribunal were entitled to form the judgment they did that, nonetheless, the procedure was fair.[34]At the heart of this appeal is the dreadful disability that Mr McCann has suffered and, no doubt, that it can be exacerbated by circumstances of stress. It may be inevitable, therefore, that in an employment relationship matters are going to be raised, however properly by an employer, which are going to increase and have an impact on Mr McCann's disability. We have considered very carefully the Decision of the Employment Tribunal and all the arguments advanced by Mr Lambert. We cannot discern any error of law in the Decision of the Tribunal, we cannot see any argument to support the proposition that the Decision was perverse, and whilst the Tribunal found against Mr McCann in a number of respects, and preferred, in some respects, the evidence of the Respondents, we can find no evidence of bias, or appearance of bias that would have that appearance to a reasonable onlooker. In those circumstances we are driven to dismiss the appeal at this preliminary stage.