THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON v MR D GUEST [2004] UKEAT 0129_04_1409

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0129_04_1409Case No Appeal No. UKEAT/0129/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTONAPPELLANTMR D GUESTRESPONDENT
Before
His Honour Judge Ansell Mr B Beynon Mrs D M PalmerDate 14 September 2004
[1]APPEARANCES For the Appellant MR D BASU (Of Counsel) Instructed by: London Borough of Islington Law & Public Service Department Town Hall Upper Street London N1 2UD For the Respondent MR J HORAN (Of Counsel) Instructed by: Islington Law Centre 161 Hornsey Road London N7 6DU SUMMARY EAT has power to consider further reasons provided by the Tribunal pursuant to a request from EAT prior to hearing the full appeal. As a result EAT dismissed appeal relating to compensation and Polkey . HIS HONOUR JUDGE ANSELL This is an appeal from a decision of a London Central Employment Tribunal who following a hearing held on 27 and 28 October 2003 in unanimous decision sent to the parties on 26 November 2003, found that the Respondent's complaint of disability discrimination succeeded and the Appellants were ordered to pay compensation in the sum of £11,194.50. The appeal relates to that compensation.[2]The Respondent throughout his adult life has suffered from mental illness designated as a recurrent depressive disorder. In June 2002 he applied to the Appellants for an advertised post as a Welfare Rights Support and Domiciliary Charge Officer. The recruitment process was dealt with by the Appellants' Welfare Rights and Financial Inclusion Manager, Mr Martin Baillie. On 5 July Mr Baillie provisionally selected the Respondent and three others, provisionally because a formal offer of employment was subject to, amongst other things, prior receipt of satisfactory references and medical clearance. On 15 August 2002 Mr Baillie received the medical clearance form which advised that the Respondent was fit for the proposed post with the following considerations:
"'An underlying health problem has been identified. It is characterised by periods of incapacity but these are not predictable in frequency, duration or severity. Early referral to Occupational Health is advised in the event of any concerns about his health affecting attendance, performance or conduct'"
As a result of that pre-employment health clearance Mr Baillie decided that the Respondent was not acceptable for appointment and the Tribunal held that arising out of that fact the Appellants had discriminated unlawfully against the Respondent on the ground of disability.[3]Compensation was awarded on the basis that had Mr Baillie conducted a proper investigation into the underlying health problem the Respondent would have been offered the post.[4]In their Notice of Appeal the Appellants contend that the Tribunal either ignored or failed to set out in its reasoning the following three matters:(a) In answer to the question in his pre-employment health clearance form: ""Have you ever used intravenous drugs or other forms of drugs for leisure?", the Respondent has falsely answered "no". Mr Baillie testified that he would have discovered upon seeking further information as to the Respondent's past and present health that that answer was false and would have taken a very serious view of this falsehood and it is further contended by the Appellants that in evidence Mr Baillie said that he would have refused employment for this reason alone;(b) The Appellants contended that Mr Baillie in evidence had said that he regarded the Respondent's employment history as "patchy" and as a result, he would not have employed the Respondent;(c) In evidence it is contended by the Appellants that Mr Baillie testified that he would not have been able to offer the Respondent any more money for the job than the bottom end of the pay scale whereas the Respondent testified that he wished to secure a significantly higher rate of pay for himself. Thus the Appellants contend that in the light of these three important areas the Tribunal are wrong to conclude that the Respondent would have been employed in any event.[5]In order to determine some of the issues that have been raised before us in the hearing of the appeal it is necessary to set out in some detail how matters had progressed since the Notice of Appeal was filed on 6 January 2004. As a result of the existing process the matter became before a Preliminary Hearing presided over by His Honour Judge McMullen QC on 24 March 2004. In the light of submissions made by the Appellants' Counsel, Mr Basu at the hearing that matters might be capable of resolution by agreement the following Order was made:
"Within 14 days the seal date of this Order the Respondent must lodge with the Employment Appeal Tribunal and file an Answer. The Respondent's answer should also include specific answers to points raised by the Appellant as to the evidence summarised. The parties are to consider the matter further and if it is agreed between the parties that the evidence was given and that the consequence of it is that the Tribunal ought to consider this matter then the Employment Appeal Tribunal will consider a consent order to allowing the appeal to go back to the Tribunal for a re-hearing of that part of the Decision If such Answer include a cross-appeal shall forthwith apply to the Employment Appeal Tribunal on paper on notice to the Appellant for directions as to the hearing or disposal of such cross-appeal."
[6]On 7 April 2004 the Respondent's representatives applied for a copy of the Chairman's notes in the following terms:
"I write to apply for an order that at this stage, without admission of the grounds of appeal by the Respondent, the Employment Tribunal be asked to expand upon its reasons why it found Mr Guest was 100% likely to be given the job he applied for if the discrimination had not occurred, having particular regard to the Appellant's Notice of Appeal at paragraphs 6(i)(ii) and (iii)."
As a result His Honour

Judge McMullen made an Order in Chambers on 8 April 2004:

"UPON CONSIDERATION of the papers IT IS ORDERED THAT: 1. The Employment Tribunal Chairman be invited to record the Employment Tribunal's reasons for awarding the Appellant 100% of his compensation within 14 days."
[7]The Respondents had also on 7 April filed a Respondent's answer to the appeal and their grounds of resistance were set out in the following terms:
"The Employment Appeal Tribunal ordered at paragraph 3 of the Order dated 22 nd March 2004 that the Respondent's answer addressed the points raised by the Appellant as to the evidence summarised. The Respondent agrees with the evidence as described by the Appellant, save that it is not true that the evidence of Mr Baillie described in the Notice of Appeal of Appeal paragraph 6(i)(b) was unchallenged." 6(i)(b) had set out the following: (b) Mr Baillie testified, without challenge, that he would have discovered that the above answer was false, upon seeking further information as to the Respondent's past and present health. He said that he would have taken a very serious view of this falsehood."
[8]The Appellants sought a review of Judge McMullen's Chambers' Order on three grounds:(a) That he had not sought the Appellants' views on the application prior to making the Order; and(b) That the Employment Appeal Tribunal had no power to order the Tribunal to add further material to its reasons; and(c) That the Order required the Chairman alone to record the reasons and excluded the consideration of lay members. Judge McMullen therefore decided to conduct a review hearing on 30 April and we have a note of his judgment sent to the parties on 23 July. In that decision Judge McMullen carefully analyses the previous decisions in this area and came to the conclusion relying on the authorities of English v Emery Reimbold & Strick Ltd [2003] IRLR 710 (CA) and a decision of EAT of Burton P and members in Burns v Royal Mail Group plc (formerly Consignia) and Another [2004] IRLR 425 that this Court did have power in the words of Burton P:
"before a final hearing to seek either a decision or reasons for a decision from an Employment Tribunal. It is to be noted that these are not for offering a second bite of the cherry of imperfect reasons but to supply material which is missing and which ought to have been included."
[9]Judge McMullen was persuaded to alter the precise wording of his Order accepting that the terminology of a 100% compensation which he had used in his original Order was more apt for an assessment of unfair dismissal compensation rather than disability discrimination. He therefore altered the Order to read as follows:
"The Employment Tribunal Chairman be invited to record the Employment Tribunal's reasons for assessing the applicant's compensation as if he would certainly have been employed by the respondents in the post concerned."
The revised Order dated 30 April was sent out on 4 May[10]Additional reasons from the Employment Tribunal were received at this Court on 19 May 2004 although for reasons which are not clear the parties did not see the document until early August. Paragraph 1 of the further received reasons reads as follows:
"1 These further reasons are provided in response to the Order of the Employment Appeal Tribunal dated 8 April 2004 inviting the Chairman to record the Employment Tribunal's reasons for awarding the Applicant 100% of his compensation. These further reasons are provided following confirmation of such reasons by all members of the Tribunal."
Thus it would appear from this document that it is a response to Judge McMullen's original Order rather the amended version. These further reasons together with an extract of the Chairman's notes of evidence relating to the evidence of Martin Baillie were sent to both parties' advisers by this Court on 3 August 2004 the covering letter contained the following paragraph:
"Both parties are asked to note that the Chairman's comments relate to the Order dated 8 April 2004. The Chairman's comments have been referred to His Honour Judge McMullen who is minded to accept the Chairman's comments which discharge the order dated 4 May 2004. Any submissions you wish to make should be received by 12.00 pm 6 August 2004"
The responses from the parties, not unsurprisingly, were that the Appellants did not accept that the reasons supplied complied with the amended Order whereas the Respondents did.[11]On the day before the hearing Mr Basu on behalf of the Appellants filed lengthy submissions much of which is a criticism of the procedure which has been adopted by this Court in seeking further reasons from the Tribunal. At the outset of this hearing we made it clear to Mr Basu that we would not allow our hearing to be used as a form of appeal against Judge McMullen's Order and that the proper avenue for objecting to that decision would be an appeal to the Court of Appeal.[12]However, Mr Basu in an ingenious attempt to side step Judge McMullen's Order has submitted to us that notwithstanding the request for information that the Employment Appeal Tribunal made, whether in its original or amended form, the information supplied by the Chairman should not now be used by this Court in determining the appeal and that if there were defects in the reasoning of the original decision the only appropriate course would be for this Court to remit the matter for a re-hearing on the issue of compensation. He relies in particular on the authority of Leverton v Clwyd County Council [1989] ICR 33. In that case the Appellant, before the Employment Appeal Tribunal contended that there was no evidence for a particular finding. The Employment Appeal Tribunal sent an enquiry to the Chairman on this point and he replied stating, in essence, that the disputed point had not been raised before the Tribunal. May LJ, in the Court of Appeal held as follows (page 46):
"No specific point was taken before us on the letter from the appeal tribunal of 26 November and the chairman of the industrial tribunal's reply of 5 December 1985, to which the appeal tribunal referred to in its judgment. Nevertheless in my respectful opinion an appeal to the appeal tribunal should be decided upon the industrial tribunal's reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by any direct communication between the industrial tribunal on the one hand and the appeal tribunal on the other."
Mr Basu also argues that it is wrong for this tribunal to consider the further reasons produced by the tribunal since the parties were not given an opportunity of making further submissions before these additional reasons were produced. He also maintains that the reasons were in response to the original Order of Judge McMullen rather than the amended Order.[13]We cannot agree with these submissions. It is clear from the line of authorities in particular Emery Reimbold and Burns that any reasons received from a Tribunal following a remission to them can clearly be used by this Court in consideration of the appeal. Indeed the Order made by Burton J in the Burns ' case was as follows:
"(iv) as to the outcome of the remission to the Employment Tribunal: (a) if the Employment Tribunal provides its written reasons upholding paragraph 68 of its Decision, then the adjourned appeal is to be restored to the Employment Appeal Tribunal for further consideration and determination on paper: the parties to be at liberty to apply to the Employment Appeal Tribunal on paper on notice to each other within 7 days of receipt of such written reasons for a further oral hearing, but the question of whether any further such oral hearing is necessary to be decided on paper by the Employment Appeal Tribunal."
[14]As to the point that the parties were not given the opportunity of making further submissions to the Employment Tribunal before the further reasons were given, we are unclear as to whether any request was made to Judge McMullen for such a direction in his Order. Indeed in paragraph 20 of his decision it is assumed that submissions had already been made on the point:
"Whether the Chairman decides to recall Members or not is a matter for him for he will have a note of the submissions and a note of the evidence and a note of the reasons which he has given and a note of the discussion with members."
[15]As to the third point that the reasons were in response to the first Order as opposed to the amended Order, we see no substance in this point at all. There was a marginal difference in the wording of the Order but the overall effect was to request from the Tribunal their reasons for forming a view that notwithstanding the issues of the lie about drug taking, salary differences and work record, the Respondent would have been employed in any event and the further reasons clearly were directed to those issues and we are therefore satisfied that notwithstanding the opening paragraph of the reasons, they are a proper response to Judge McMullen's amended Order.[16]Passing then to the reasons provided, did they provide any support to the issues raised in the Notice of Appeal? The Tribunal dealt with the issue of salary, in paragraphs 4 and 5 of their additional reasons:
"4 Approaching the question of whether there was a material risk of the appointment failing at the eleventh hour due to an inability to agree on salary, we find that there was really no such risk. Our reasoning for this conclusion is that the Respondent was not overwhelmed with job applicants of the applicant's calibre; correspondingly, the Applicant was not overwhelmed with alternative job offers from elsewhere; the Applicant was the best job applicant interviewed by Mr Baillie, and the Applicant had been unemployed for some considerable time. In our experience these factors invariably result in a recruiting employer and a job applicant negotiating hard but ultimately coming to terms on salary, albeit with occasional disappointment on one or both sides on the starting figure finally agreed upon. 5 The dynamics to fill the post with an able job applicant on the one hand, and, on the other, to be in gainful employment, were in reality, so powerful in our view that we do not consider that there was any realistic risk of the appointment process failing at the final hurdle due to inability to agree on a starting salary."
In paragraph 6 they refer to the Respondent's submissions relating to the Applicant's "patchy" employment history and his previous recreational drug taking and paragraph 7 set out the issue in relation to the lies about recreational drug taking:
"7 There was of course a possibility that Mr Baillie would not, notwithstanding further enquiry, have learnt about the answer to recreational drug taking. In any event, and to his credit, Mr Baillie indicated in evidence that it would not, alone and in isolation, necessarily have been fatal to an appointment. His emphasis is on the trust and confidence issue. But looking at this submission within its proper context, we do not find it at all convincing. We bear in mind that the recreational drug use occurred at University whilst Mr Guest was under the age of 19 years."
The Tribunal's conclusion on these issues were set out in paragraphs 9 and 10 as follows:
"9 Assessing the possible consequences of such discoveries and assessing them on a worst case scenario for the Applicant, i.e. Mr Baillie establishing all those matters on which the submissions are based, we are satisfied that they would not have prevented Mr Guest's appointment. 10 We have viewed the factors in what we consider to be their proper context, namely with the open mind, understanding and common tolerances which Mr Baillie would have brought to those issue, and the particular insight which a specialist of Mr Baillie's standing has about the obstacles society in the way of disabled persons in gaining access to the workplace. We conclude that there was, in reality, no material risk that further enquiries would have prevented, ultimately, on unconditional offer of employment and its acceptance, at an agreed starting salary."
[17]As regards the lie over drug taking Mr Basu submits that the Notes of Evidence coupled with the Respondent's admissions in his answer make it clear that the lie about previous drug taking would have been fatal to his job application. We have seen the Notes of Evidence and whilst they are not entirely clear we cannot agree with Mr Basu's interpretation and prefer the Tribunal's view as expressed in paragraph 7.[18]He then contends that the Tribunal in its further reasons have not dealt with the submission that Mr Baillie would not have employed the Respondent because of his "patchy" employment history. That submission is not supported by the Notes of Evidence and whilst the Tribunal in its reasons does go into the issue in great detail they raise the issue in paragraph 6 and in paragraph 9 having referred to the submissions conclude that the factors raised would not have prevented the Respondent's employment. Accordingly we reject his submission on this point.[19]The conclusions in paragraphs 9 and 10 also apply to the issue of whether the salary on offer would have been a "deal breaker" and Mr Basu submits that the Tribunal erred in failing to come to a conclusion in their reasons as to the precise salary level which would have been agreed between the parties although the award of compensation was based on the minimum salary level which was on offer. However, we agree with Mr Horan's submissions that it was sufficient for the Tribunal to come to a conclusion that the dispute on salary would not have prevented his employment taking place and that conclusion is clear from paragraph 5 of the additional reasons.[20]Accordingly, in the light of the additional reasons supplied by the Tribunal we can find no substance in the matters raised by the Appellant we will dismiss the appeal.[21]At the hearing Mr Horan for the Respondent indicated that depending on the outcome of our decision the Respondent may wish to apply for the Appellant to pay the Respondent's costs which had been incurred since the Tribunal's further reasons were provided on the basis that once those reasons were available he argues there was no substance in the appeal.[22]Accordingly we would invite both parties to file written submissions on the issue of costs within 14 days from the handing down of this judgment after which time we shall give our decision on costs.