MRS S A ORAL v THE GOVERNORS OF THE SCHOOL OF ST DAVID & ST KATHERINE & OTHERS [2004] UKEAT 0029_04_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0029_04_0811Case No Appeal No. UKEAT/0029/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S A ORALAPPELLANTTHE GOVERNORS OF THE SCHOOL OF ST DAVID & ST KATHERINE & OTHERSRESPONDENT
Before
Mr Justice BurtonDate 8 November 2004
[1]APPEARANCES For the Appellant MR ORAL (Representative on behalf of the Appellant) For the Respondents Ms I OMAMBALA (of Counsel) Instructed by: London Borough of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TR SUMMARY Practice and Procedure Case based on procedural irregularity/bias and failure by Tribunal to deal with submissions/evidence, in relation to unsuccessful claim of disability discrimination. No point of law and no case of procedural irregularity or bias established. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Applicant, Mrs Oral, against the unanimous Decision of the Employment Tribunal at London Central, after a three day hearing between 25 and 27 March 2003, in Reasons delivered to the parties on 7 May 2003. By that Decision, the Employment Tribunal dismissed the Applicant's claim of disability discrimination and failure to make reasonable adjustments under sections 5(1)(a) and 5(2)(a) of the Disability Discrimination Act 1995 , and the Tribunal further found that the Applicant had not been unfairly dismissed but had been fairly dismissed by reason of capability.[2]The Applicant has appealed on a number of grounds, to which we will refer. Below, the Applicant was originally, at earlier interlocutory hearings, represented by a solicitor and/or counsel. At the hearing before the Tribunal she was represented by her husband, Mr Oral, and if he represented her before the Tribunal as ably as he has represented her today, then she would have had a very passionate, convinced and committed advocate on her behalf, as she has had today. He has made every point on her behalf that could possibly be made.[3]The short history, so far as the Tribunal's Decision is concerned, can be recited by reference to its findings of fact. She was a permanent teacher at the First Respondent's school, teaching French, from 1 January 1989, having previously, at an earlier stage, been a supply teacher. She had had a period of depressive illness in the 1980s while such a supply teacher, and in July 1997 she suffered another period of depressive illness and was referred to Occupational Health, returning to full duties in October 1997. Unfortunately, she went off sick with a similar problem on 4 September 2000 for a short time, and then again from 14 September 2000; indeed she was off sick from that time and never returned to work and, as will appear, she was dismissed as a result of a meeting in July 2001, her employment terminating at the end of December 2001.[4]The period, therefore, that was required to be considered by the Tribunal was the period between her going off sick, as it turned out for good, on 14 September 2000, and the period in July 2001, and it was in relation to that period that the allegations against the Respondents were formulated of unfavourable treatment, namely the dismissal, and failure adequately to consider the making of suitable adjustments. These were summarised, as a result of two earlier interlocutory hearings in which the Applicant was represented, and remained so defined for the purposes of the Decision, as appears in paragraph 3.1.3 of the Tribunal's Decision, as being adjustments by way of a staged return to work, a longer period away to recover from the Applicant's illness, failure to explore part-time working with the Applicant and failure to look at adjustments in the workload, and, if those failures were found, then the issue would arise as to whether any such failure was justified under section 5(2)(b) of the Act .[5]The findings of fact began, essentially, in October 2000 when, as appears in paragraphs 25 and 26 of the Tribunal's Decision, there was a meeting on 6 October 2000 between the new Head Teacher, who had arrived on 1 September, Mr Horsewood, Ms Caroline Allen, who was the Head of the Modern Foreign Language Department in which Mrs Oral worked, and Mr Oral. The Tribunal recites the evidence of Mr Oral, Mr Horsewood and Ms Allen, and makes findings in paragraph 26 that "the Tribunal accepted that at that meeting both Mr Horsewood and Ms Allen suggested a move to the ethnic minority team", and that Mr Horsewood suggested Mrs Oral working mornings only. A suggestion was made that Mr Horsewood should go to Mrs Oral's home to meet Mrs Oral, as he had not previously met her, but Mr Oral turned this suggestion down; we shall return briefly to this aspect later.[6]Between October and December 2000, Ms Allen made three or four telephone calls to Mrs Oral or her husband, and the last of them was apparently an unfruitful call because there was an altercation between Ms Allen and Mr Oral, as found by the Tribunal.[7]On 3 December 2000, Ms Allen, on the findings of the Tribunal, went to Mrs Oral's home and collected Mrs Oral, no doubt by arrangement, and took her to her flat. There was a two hour meeting, during which there was some discussion of ways in which Mrs Oral could return to work. In the meanwhile, two days earlier, there had been notice given of an invitation to Mrs Oral to a formal meeting to discuss her attendance record, on 15 December, at which she was entitled to be represented. That meeting in fact took place on 9 January 2001. Mrs Oral did not attend, but she was represented by her union representative, a Mr Marshall, and it was also attended by a Mr Grant, as well as the Head Teacher, on behalf of the Respondent, Mr Horsewood.[8]The minutes of the meeting, as accepted by the Tribunal, record that there had been an informal meeting held with her partner before half term, and that the School considered part-time and alternative work options and that the outcome of the meeting, as the Tribunal found, was to refer the Applicant to Occupational Health. The Tribunal records that there were difficulties in organising the meeting with Occupational Health, which Mrs Oral was to attend. She failed to attend on 5 February, but she attended on 6 March 2001, and there is a memorandum of Dr McGrath's findings, recorded in paragraph 34.[9]At paragraph 35, there is a record of a further meeting between Mr Horsewood, Mr Grant and Mr Marshall, recording that the Applicant had previously been offered a change of role in the School, and Mr Marshall agreed that there were issues in the School that concerned her, but that those were not her main problem; it seems that there were domestic problems which were primarily concerning Mrs Oral. In any event, her medical condition was not ascribed specifically to stress at work.[10]At paragraph 36, the Tribunal records a paragraph in Mr Horsewood's statement, at paragraph 28, by which the Tribunal was seemingly impressed, which read as follows:
"Throughout this process, Mr Marshall did not respond positively towards the alternatives suggested by myself and Mr Grant as he did not seem to have any instructions from Mrs Oral regarding these alternatives. The discussions of various alternatives were instigated by myself and Alan Grant and were not suggestions made by Mr Marshall on behalf of his client. (The only time, in my recollection, Mr Marshall instigated a discussion around alternatives was when he enquired into the possibility of a redundancy in a conversation he had with Mr Grant on 21 May 2001 (bundle Page B255)). It seems to be Mr Marshall's position that Mrs Oral remained too unwell, and as such it was no use looking at other alternatives."
[11]Mr Horsewood wrote a letter of 11 March 2001, which recorded the position, to her, including the statement:
"As your return to work does not appear to be possible in the short-term, Mr Marshall presented the case for extending the review period. The meeting also considered referring the matters to Governors without further delay. Taking into account all the information presented to the meeting it was agreed to review your case in a further seven weeks, in line with the recommendation of the Occupational Health Adviser."
[12]Mrs Oral was too unfit to attend the Occupational Health unit on 23 April, and there was a meeting of 26 April, between Mr Horsewood, Mr Grant and Mr Marshall, at which it was agreed that a further review meeting would be held on 25 May. The Tribunal records that, by that stage, Mr Horsewood was concerned at the continued inability to cover the Applicant's absence at the School, and that there was a need to appoint a replacement.[13]A further letter was written on 30 April 2001 by Mr Horsewood, in which Mr Horsewood wrote, among other things, as follows:
"Mr Marshall has agreed to contact you to discuss possible outcomes of [the meeting of 8 March] which in accordance with the procedures adopted by the Governors will explore the options, which will include a return to work, the possibility of early retirement through ill-health and referral to the Governing Body for dismissal due to continued and prolonged absence."
[14]In paragraph 42 the Tribunal records a letter from a Dr Furlong, a Consultant Psychiatrist, who notes that the Applicant had unfortunately been:
"markedly depressed for seven months to the extent that she has been hardly going out at all and has lost three stones in weight with serious sleep disturbance…. She has been given an open-ended sickness certificate…"
Dr McGrath reported by memorandum, dated 15 May 2001, recorded in paragraph 43 of the Tribunal's Decision, that:
"…in the opinion of the Consultant Mrs Oral is suffering from a significant depressive illness for which she was now attending day hospital on a regular basis. Mrs Oral is obviously unfit for all work at present."
[15]Mr Marshall, her union representative, visited Mrs Oral at the day hospital and reported to Mr Grant, including the statement, according to Mr Marshall, that the Applicant was not keen to take early retirement on ill-heath grounds, and enquiring whether redundancy was an option or a possibility.[16]Dr Furlong reported on 21 May that it might be a possibility to have a phased return in the following term and it would be helpful to have that arrangement as a possibility.[17]On 26 June Mr Horsewood wrote to Mrs Oral notifying her of an intention to hold a formal meeting to consider her position on 11 July, and it was that meeting which took place, according to paragraph 49 of the Decision, on that date, attended by a number of the Governors. Mrs Griffiths, the clerk of the Governors, took notes and Mr Oral attended on behalf of Mrs Oral. The Tribunal refers to having before it the manuscript notes of the meeting, the type-written transcript of the manuscript notes and the typed notes, and found that the Applicant's husband, Mr Oral, was given a full opportunity to speak about his wife's case. There was, the Tribunal records, considerable repetition. Mr Oral made his presentation and he was angry about the way in which his wife had been treated. The Tribunal found that Mr Oral did not ask for Mrs Oral to be allowed to return to work part-time, or allowed a phased return, nor did he request consideration of early retirement or redundancy, and that he did not indicate when his wife would be fit enough to return to work. The Governors decided that Mrs Oral should be dismissed, and a letter was written to her, recording that decision, dated 12 July, and she did not appeal against the decision to dismiss her, Mr Oral explaining to the Tribunal that she was, by that time, in a real state of shock. The employment continued until 31 December 2001.[18]The grounds of appeal, which have been put forward by Mr Oral, effectively fall into four categories. The first category is the question of procedural bias, or procedural misconduct, because in the course of his submissions to us today he did not adopt or pursue any suggestion of bias, but simply concentrated on what he submitted to have been an unfair method of hearing the case, which led to an unfair hearing. What he described as being 97% of the substance of his case related to what occurred at the very outset of the hearing before the Tribunal. He had sent to the Tribunal two documents, by way of complaint against the Respondent, prior to the hearing. One was a fax, dated 12 March 2003 and in fact sent, it seems, on 13 March, according to what he tells us, which was a one page document. The second fax, which was dated 13 March, was not sent, it seems, until 23 March, and that was a six page document, which would have had annexed to it 47 further pages of exhibits, but he says he was told that he did not need to fax those in advance, and he brought those with him on the day. The result was that, somewhat as has been the position today, when we have been faced with very substantial additional documentation to look at, he arrived on the first day of the Tribunal below with exhibits to supplement two earlier faxes that had been sent.[19]The substance of those faxes was a complaint about the conduct of the Respondents, and we have heard nothing to persuade us that the Tribunal was not right in summarising that what he was saying was that either the Respondents should be debarred from further defending or that he should be allowed an adjournment or postponement of the case.[20]The complaints he made were largely, as the Tribunal indicates, about disclosure, and about the documents that had been produced or not produced by the Respondents, and he is concerned that that Tribunal did not adequately consider the applications that he was making, which he only had, in all, some half an hour to address them on. He complains that the contents of the second fax in particular, that dated 13 March and sent on 23 March, were not expressly referred to by the Tribunal.[21]The Tribunal addresses the questions that were raised before it, and the decision it made at the outset, in paragraphs 4 to 12 (inclusive) of its Reasons, noting at paragraph 4 that:
"At the beginning of the hearing Mr Oral, for Mrs Oral, made an Application to strike-out the Notice of Appearance or, in the alternative, to postpone the hearing."
The Tribunal records:
"The complaints that he made were set out in a fax to the Employment Tribunal dated 13 March 2003 which the Tribunal took into account in relation to the application. The matters complained of in that fax related to discovery."
[22]It is quite plain that the much more substantive fax that was put before the Tribunal – the first fax dated 12 March having effectively been just a taster by way of seven paragraphs, summarising what was to come – is that dated 13 March, which makes the arguments upon the basis of which Mr Oral was putting forward his submissions. We are not persuaded, at all, that when the Tribunal refers to the fax dated 13 March 2003, they were not in fact referring to the fax dated 13 March 2003, which was the substantive document upon which he was relying before them, and in any event we are satisfied, particularly given the eloquent way in which Mr Oral has addressed us, that he would soon have alerted the Tribunal, if they were not already alert, to the contents of the fax dated 13 March 2003, which formed the basis of his submissions.[23]The Tribunal summarises Mr Oral's complaints in paragraphs 5 to 12, and concludes that there was no ground to strike out the Notice of Appearance, and also rejected the application to postpone. That was quite plainly an exercise of case management, and, were it not for the determined way in which Mr Oral has argued the matter on the part of the Applicant today, we would otherwise found our decision on the basis that case management decisions are for the Employment Tribunal to decide and are wholly within its discretion, and that we have heard no point of law which could justify any reopening of such a decision. In any event, we would need to be satisfied that any error made by the Tribunal, in relation to the way it approached such an application, had any effect on the outcome of the hearing.[24]But in deference to Mr Oral's submissions, we have considered the most fundamental point that he was making to us today, or what he said to be fundamental, which he said formed the real basis of his application before the Tribunal on 25 March, to see whether, had the Tribunal appreciated what he says they did not appreciate, they would or might have come to any different conclusion. We have included in our consideration the fact that, in relation to one matter, he has made before us, although not previously signalled in any way, an application to put in fresh evidence.[25]The first matter upon which he relied in this regard is that he complained in the fax dated 13 March 2003 about the fact that a number of documents were blanked-out, as disclosed by the Respondent. He has only shown us one of those documents today, and therefore we can only express any views in relation to that one document. It is quite plain that a party to litigation in the Employment Tribunal is entitled to blank-out, where appropriate, if the matter relates to sensitive matters not otherwise relevant in the proceedings, and it is always open for a party to make an express application for such blanking-out to be lifted. It does not appear that any express application was made in that regard, although Mr Oral plainly used it as part of his argument for striking out and/or adjournment.[26]But leaving that aside, the point that he now raises is that one of the documents – and it is that which he has shown us – which was blanked-out, was a document dated May 2000, which was apparently a medical note, where the name of the patient had been blanked-out, and by inclusion of that document in the bundle, the implication was that that document related to his wife. The document said "…………..changed her mind about redundancy" and then, further down, "…………….saying you cannot force anyone to take redundancy".[27]That was a document which, it seems, formed no part of the conclusions by the Employment Tribunal and which, in any event, related to a period after September 2000 and we have recited, in material terms, the findings which the Tribunal made. But Mr Oral submits that it might, by its very inclusion in the bundle, have infected the mind of the Tribunal in some way and/or informed its approach to the parties' credibility. He tells us that, subsequent to the hearing, he managed to find out that the name blanked-out on that document was not in fact that of his wife at all, but of somebody else. The fact that he had so discovered formed the basis of an application to the Employment Tribunal to review its Decision, on the basis of the disclosure of fresh evidence, and the Employment Tribunal was unimpressed by any suggestion that it was material fresh evidence, such as to cause it to consider that there might have bee something unsafe or unsound about its Decision, and refused the application for review on that and other grounds.[28]There is no specific application for fresh evidence before us, nor is it a specific ground of appeal that there was such a document which is said now to be shown to have been misleading or incorrect in the bundle. But Mr Oral has used that document as an example to us of why the application that he was making on 25 March should have been more carefully considered, and that there ought to have been more specific consideration in particular of his application, in so far as it formed part of what he was saying, to debar the Respondents or grant an adjournment in the light of the inclusion in the bundle of some blanked-out documents.[29]We are, as the Tribunal was, wholly unpersuaded, by reference to this example, which is the only one which has been put before us, or indeed before the Employment Tribunal on review, that any query is raised about the decision by the Tribunal, not to speak of the conclusion of the Tribunal made by way of case management on 25 March, in respect of which alone the matter is relied upon before us. It is quite plain, although we have not heard any argument on the Respondent's behalf in this regard, if indeed it be the case that this document related to a different patient, that there was a mistake, but it does not appear to us to have played any material part in the conclusion of the Tribunal or the outcome of the case.[30]The second matter about which Mr Oral was making a complaint in his letter of 13 March, and in relation now to the way in which the Tribunal dealt with his application, is by reference to what he submits to have been an inadequacy in or inconsistency between the hand-written and type-written notes of the meeting of the Governors of 11 July 2001. He has carefully taken us to the hand-written notes and the type-written notes, and he has shown us two matters. One is what he alleges to be an inconsistency between the hand-written and type-written notes, relating to whether or not there was a mention of a possible early retirement. It is quite plain that both the hand-written notes and type-written notes are entirely consistent in this regard in recording that there was discussion at that meeting of the possibility of a mutually agreed termination of the contract. Nothing we have seen causes us to believe that the Tribunal would have come or should have come to any different conclusion about the admission of the hand-written or type-written notes, or the way in which it would treat them, by reference to any alleged inconsistency between them: there is none. To anticipate, Mr Oral also relies upon the fact that in both the type-written and hand-written notes there is such a reference in order to seek to challenge the conclusion by the Tribunal in the last sentences of paragraph 49 of its Decision that:
"Mr Oral did not ask for Mrs Oral to be allowed to return to work part-time or allowed a phased return nor did he request consideration of early retirement or redundancy."
[31]We are entirely of the view that the mention, which we have referred to, in the notes, among other things, of discussion of a mutually agreed termination in no way falsifies the finding by the Tribunal to which we have referred, but in any event there is no basis upon which it can be found that the Tribunal's Decision in that regard was perverse. None of that, however, would in any event go to any real challenge to the decision of the Employment Tribunal not to act upon Mr Oral's application of 25 March.[32]The third matter that he raised then, and has mentioned to us now, as having been an important part of that application which ought, as he puts it, to have weighed with the Tribunal, was the fact that the Respondents, wrongly as he submits, had included in the bundle at least three documents (in the sense that he has only shown us three) which reflected badly upon him, as he believes.[33]We can see no substance whatever in this submission. The documents in question were all contemporaneous documents, which were properly disclosed by the Respondents. Insofar as they reflect badly on him, and we are not entirely sure in any event that they do, such a matter is, in our judgment, entirely irrelevant. The person whose position was being considered by the Tribunal was the Applicant. It was purely fortuitous that by that time Mr Oral was acting as her legal spokesman, but he had always, of course, represented her at meetings. But so had the trade union representative, Mr Marshall, who was not called as a witness by the Applicant, and, in any event, insofar as Mr Oral concluded that references in documents, which he considered to be unfavourable to him, had been made, it was open to him, if such matters had been relevant, to cross-examine the witnesses for the Respondent on that basis. We certainly see no basis upon which the Tribunal's decision not to make any of the orders that the Applicant was seeking on 25 March could be criticised by reference to them.[34]The fourth matter, and last, to which Mr Oral draws our attention as forming part of his application of 25 March is that he pointed out at that stage that there was, it seemed, no intention by the Respondents to call either Dr McGrath, of the Occupational Health Unit, or Mrs Griffiths, who had attended as clerk of the Governors and prepared the hand-written notes and no doubt the type-written notes drawn up from the hand-written notes, of the meeting of 11 July. It is unclear what application he was making in that regard. He was certainly not seeking a Witness Order for them to be called as witnesses of his own; indeed that would clearly not have been of any advantage to him, as what he said in his letter of 13 March, and has said by way of submission today, is that he would have liked to have cross-examined them, which of course he could not have done had he called them as his own witness. There is, however, no basis upon which the Tribunal could have compelled the Respondents to call those, or indeed any, witnesses and the best course for Mr Oral is no doubt to take the course he did take, which was to criticise the Respondents for not producing them, and to invite the Tribunal, insofar as any material point might arise, to bear in mind that neither Dr McGrath nor Mrs Griffiths had attended to support any case that rested upon their evidence. We see no basis on which that either founds any challenge to the Tribunal's Decision.[35]In those circumstances, what Mr Oral more than once described to us, during the course of his submissions, as forming 97% of his submission before us falls away. But we deal with his other points.[36]His second point relates to his case that the Tribunal, or in particular the Chairman, did not allow him adequate opportunity to cross-examine. There are two matters which he raises by way of substance in this regard. The first he has not developed orally, but has left only in his written submissions, of which we have taken account. He pointed out, in paragraph 21 of his Affidavit, sworn pursuant to an earlier Order of this Tribunal to support his allegations of bias and/or procedural irregularity, that the Tribunal cut short his cross-examination of Ms Caroline Allen; and his own evidence is that in course of such cross-examination:
"I became tearful but within 1 or 2 minutes I was recovering. The Chairman then insisted I needed to take a break even though I said I did not need a break. There was a 10-minute break. I was very upset that the Chairman broke my chain of thoughts. After 10 minutes on my return, my thoughts vanished because I during those days [had] hardly had any sleep and I was extremely tired. By this paragraph what I am saying is that the Chairman appeared to have rescued Ms Allen from that situation while I was gradually making a point. I was forced to take a break even though I said that I did not need a break."
[37]The substance about which he was cross-examining Ms Allen related to the occasion of the Applicant's visit to Ms Allen's flat, and what she had said to Mr Horsewood afterwards, in relation to which, as will appear when we deal with this matter briefly below, Ms Allen in fact was helpful to Mr Oral.[38]Not surprisingly the response by the Chairman in paragraph 21 of her response to Mr Oral's affidavit dated 7 January 2004, records the cross-examination by Mr Oral of Ms Allen and then states:
"Immediately after this the Chairman's note records that Mr Oral broke down in tears and said to the Tribunal that that was such a happy moment. The Chairman accordingly adjourned the hearing from 11.15am to 11.25am to assist Mr Oral. He raised no objection to this. Nor did he say upon his return that he had lost [his] chain thought."
We conclude that this too is entirely a matter of case management, and indeed it might have been a proper matter of criticism if the Chairman, faced with an unqualified person cross-examining in tears, had not granted him time to recover himself before proceeding.[39]The other matter which is the subject matter of complaint also relates to the events which form the subject matter of the conclusion by the Tribunal in paragraph 28 of its Decision, relating to the visit by Mrs Oral to Ms Allen's flat on 3 December 2000. That paragraph reads as follows:
"On 3 December 200, Ms Allen came to collect Mrs Oral from Mrs Oral's home and took her to Ms Allen's flat where Mrs Oral remained for approximately two hours. This was a very positive step as far as Mrs Oral, and indeed Mr Oral, was concerned and there was some discussion of ways in which Mrs Oral could return to work."
The Applicant has told us that Ms Allen went on to say that she had passed on to Mr Horsewood, after that meeting, the fact that Mrs Oral was willing to discuss, if necessary with him, the possibility of some kind of return to work.[40]It seems that before Ms Allen gave her evidence, Mr Horsewood had given his evidence, and it was put to him by Mr Oral, in cross-examination, that Ms Allen had passed on that information to him. Mr Horsewood said that he had no recollection of that occurring, according to what we are told by Mr Oral, and he then sought to cross-examine further by reference to putting to him, as he in fact did, that Ms Allen had recollection of it, and so how could he not, and Mr Horsewood apparently said – again we accept, for this purpose, the recollection of Mr Oral, although we have not sought to ask the Respondents whether they agree with this – that he did not agree with Ms Allen, because he had no recollection of such a conversation.[41]It seems, and this is the matter of which Mr Oral complains, that at this stage the Chairman interrupted and said "perhaps you can ask Ms Allen when you are cross-examining her". This is the subject of complaint by Mr Oral, on the basis that he feels that he was inhibited from cross-examining Mr Horsewood. The Chairman, in paragraph 23 of her comments of 7 January 2004, says as follows:
"This appears to be a matter relating to the questioning of Mr Horsewood. The Chairman's notes record that Mr Horsewood said that he was not disputing Ms Allen's Witness Statement. Later on he confirmed that as far as he knew, Ms Allen kept in touch with Mr Oral for the first term of her absence. The Chairman cannot recall interrupting Mr Oral and her notes do not disclose such an interruption in relation to his not agreeing with Ms Allen's statement. Mr Oral did repeat his questions on occasion and it may be that after such a repetition the Chairman suggested that he could put the question to Ms Allen in cross-examination."
[42]There is nothing in what we have seen which in any way suggests to us that there was any inhibition upon cross-examination to any material extent. The Chairman is entitled, indeed obliged, as part of her conduct of hearings to speed the matter on, and provided that there has been an opportunity given, on the one hand for a case to be put, and on the other hand for the witness to be able to deal with the case, there is no need for the matter to be repeated, and we have not been able to understand from Mr Oral today, when we asked him, what further matters he feels he would have been able to put to Mr Horsewood, other than the matter that he did put, and which led to the answers to which we have referred.[43]We are wholly satisfied that there is no evidence of any procedural irregularity in relation to inhibition on cross-examination. This is a case in which, of course, there has been no order for cross-examination before us and we are obliged to do the best we can on the basis of the evidence before us, in the light of the guidance given to us by the Court of Appeal in Stansbury v Datapulse plc and another [2004] ICR 523 , which expressly approved the previous approach of the Employment Appeal Tribunal in this regard in Facey v Midas Retail Security Ltd and another [2000] IRLR 813. The members of the Tribunal have both set out statements which support what the Chairman said, and we see nothing which causes us to have any doubt at all in this regard.[44]The third ground of appeal, if we can put them into the four categories, can be dealt with shortly. It was put as a complaint against the Tribunal that it had failed to issue a certificate of correction. One certificate of correction was issued by the Tribunal, dated 3 June 2003, because it was apparent that two lines had been left off the bottom of page 11 of the Decision as typed – it would appear clearly as a mistyping – and the certificate of correction replaced those two lines.[45]But of course a certificate of correction has no particular jurisprudential basis, and does not arise very often, and is certainly not the basis of a challenge to an employment tribunal's decision where it suggested that there are failures to record facts accurately. If there are immaterial errors in an employment tribunal's decision, then sometimes an employment tribunal can be persuaded, perhaps on a review, while refusing a review, to pick up minor factual errors in a certificate of correction. But that must be a matter of administration, rather than law. Of course, if there is a significant error in an employment tribunal's decision, the complaint is not that there was a failure to issue a certificate of correction, but that the existence of such an error could give ground for a case that the employment tribunal's decision erred in law by virtue of perversity. There is, of course, abundant authority that challenge to an employment tribunal's decision on the grounds of perversity is very difficult to achieve, the most recent pronouncements of the Court of Appeal being in Crofton v Yeboah [2002] IRLR 634 . It is not sufficient for an appellant to complain that one witness was believed when that witness should have been disbelieved, or that certain evidence should have been preferred to other evidence. It is not even sufficient for there to be a complaint that certain evidence was not mentioned or not dealt with when it should have been.[46]It is clear that when the Appellant refers, as Mr Oral has done, to something that he calls "silence", what he is doing is referring to the silence of the Tribunal in relation to particular facts which he submits to have been important; and, expressly or impliedly, lying behind his case of silence is a case that the Tribunal erred in not dealing with that fact or argument that he put forward. But it is totally plain that that is not a proposition that can found an appeal. The most helpful recent exposition of the duty of a first instance tribunal can be found in English v Emery Reimbold & Strick Ltd [2003] IRLR 710 . At paragraph 17, Lord Phillips MR said as follows:
"As to the adequacy of reasons, as has been said many times, this depends on the nature of the case…. In the Eagil Trust case, Griffiths LJ stated that there was no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case: "
When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal, the basis on which he acted…" " Lord Phillips said, at paragraph 18:
"In our judgment, these observations of Griffiths LJ apply to judgments of all descriptions."
[47]In addition, there has been a reference made by the Appellant to Retarded Children's Aid Society v Day [1978] ICR 437 for that same proposition. In those circumstances, if there was an error of fact, it has to be one which can be shown to have led to a perverse judgment, either on its own or together with other equally serious errors.[48]This Notice of Appeal has not been put forward on the basis of perversity, although Mr Oral did say, in his written submissions, that although he was no lawyer, he thought there might be some indication of perversity, and we have certainly not ruled him out on any technicality of there being no express reliance on perversity in his Notice of Appeal. If this Decision had been arguably perverse, we would have been willing to consider the position. In our judgment, however, it is not, and the point that he relies upon in order to substantiate a case in that regard – or, in fact, in order to put forward, as he does, some case that there ought to have been a certificate of correction, which we have indicated is not sufficient in any event – is by reference to paragraph 26 of the Tribunal's Decision, to which we made reference earlier. That reads as follows:
"The Tribunal accepted that at the meeting on or around 6 October 2000 both Mr Horsewood and Ms Allen suggested a move to the Ethnic Minority Team and we also accept on the evidence that we heard that Mr Horsewood suggested Mrs Oral working mornings only. Ms Allen suggested that Mr Horsewood should go to Mrs Oral's home to meet her but on the evidence of both Ms Allen and Mr Horsewood Mr Oral turned this suggestion down."
[49]Mr Oral has told us, and this has been confirmed by the Respondent, for whom Ms Omambala has appeared although we have not called on her, that this was an error. It was not Ms Allen who made that suggestion: it was Mr Horsewood. On the face of it this is a wholly immaterial error, as it might be to record that the meeting took place on a different day from that on which it occurred. But Mr Oral has submitted that it is in fact symptomatic of a more fundamental point, and he takes it together with his case, to which we have referred, in relation to whether or not Ms Allen discussed with Mr Horsewood after Mrs Oral's visit on 3 December, as to whether the Applicant would have been willing to discuss matters further with Mr Horsewood. He submits that it would have been significant at the time as to who made the suggestion that Mr Horsewood go to Mrs Oral's home, and that Mr Horsewood, being a new person on the scene with whom the Applicant was not at all familiar, would have been a frightening possibility for her, and that it was in that regard significant that it was he who suggested the visit, rather than Ms Allen with whom the Applicant had, and continued to have, a good relationship.[50]We are entirely persuaded that this error is of no materiality at all; and the reason is simply this, that very frankly, and indeed plainly correctly, Mr Oral told us more than once in the course of his submissions to us, with his wife, the Applicant, sitting next to him, that any suggestion that Mr Horsewood visited her flat would have been unacceptable; and in those circumstances it appears to us clear that the question as to who made that suggestion was of no materiality at all.[51]We are satisfied, indeed, that the Tribunal did not make any material errors of fact, and, insofar as there is any lingering suggestion made that there was some failure by the Tribunal in relation to an express reference to the dispute between Mr Horsewood and Ms Allen, if such it was, as to whether there was a discussion between them of the outcome of the visit by Mrs Oral on 3 December to include the possibility of a discussion of a return to work, we are satisfied that the Tribunal made sufficient findings, as they did, first of all in relation to paragraph 28, when they recorded that there was some discussion of ways in which Mrs Oral could return to work as between herself and Ms Allen, and, significantly, that there was similar discussion as to the possibility of part-time and alternative work options at the meeting on 9 January 2001, attended by Mr Horsewood, Mr Grant and Mr Marshall, on Mrs Oral's behalf, the result of which was an agreed reference of Mrs Oral to Occupational Health. We are satisfied that the Tribunal made findings, both as to that period and subsequently, with which we cannot possibility interfere, and which led them inexorably to the conclusion that the Tribunal reached, in paragraphs 61 and 62, that there was no failure by the Respondent to make reasonable adjustments.[52]The fourth and last point was put under a different head simply because of its origin, but adds nothing, in the event, to the discussion which we have had with Mr Oral and to the results that we have already adumbrated in this judgment. Mr Oral would complain that the decision to put Mrs Oral back onto full pay for her notice period, albeit that she had been on half pay during the long-term sickness period, was one which ought to have commenced from an earlier date than it did. However, as he accepts, there was no claim for unlawful deductions or for breach of contract in that regard, nor even a claim in the agreed issues, which were firmly set in stone at the interlocutory hearings and remained the case at the full hearing, as to what the acts of unfavourable treatment or of failure to make reasonable adjustments amounted to; none of them included any reference to the failure to make a payment, other than very briefly in the Further and Better Particulars, by reference to an assertion that her distress was thereby exacerbated, but not in order to establish a cause of action, as Mr Oral has accepted. Thus, although this was the source of his argument, he in terms did not put it forward before us today by way of a ground of appeal against any failure by the Tribunal to make substantive findings in that regard.[53]The only basis upon which he sought to rely on it was by reference to his case that, after the letter of 12 July 2001, which recited the outcome of the hearing, a further letter was sent to the Applicant dated, on its face, 11 August 2001, which was not received until 14 September 2001 by the Applicant. He sought to say that the Tribunal ought to have made findings in relation to whether this letter was, as he asserted, in some way to the discredit of the Respondents, and, although not written by Mr Horsewood or even on his behalf, because he is the Head Teacher as opposed to a governor, in some way to reflect his lack of credibility, or whether it was simply a case either of misdating of the letter or, perhaps equally if not more likely given that it was the school holiday period, the fact that a letter that was drafted on 11 August was not sent until a month later, without the date being changed.[54]We are plainly in no position to reach findings as to which of those three, if not other, explanations is the correct one. But the Tribunal made no specific finding in that regard. We are wholly unpersuaded that this was in any way a material matter. It related to matters after the dismissal at the Governors' meeting, and it related in particular to after the period when failures to come up with adequate adjustments had been alleged against the Respondent. We are unable to see how it could have reflected to the discredit of Mr Horsewood, but in any event, if it had, it would have been on a wholly collateral basis, and not fundamental to the central issues in the case. This Tribunal was, consistent with the authority in English v Emery Reimbold & Strick Ltd , to which we have referred, not obliged to make findings in relation to every matter raised before it by advocates, in this case the Applicant's husband, and certainly not on issues of credibility as opposed to issues of central fact. We do not believe that if the Tribunal had made any such finding it would have had any impact at all on the outcome of this case, even if such conclusion had been adverse to the Respondent, and we are by no means certain that it would have been.[55]In those circumstances, all the reasons urged upon us at length and with determination by Mr Oral are dismissed, as is this appeal.