MR BARRY KAIL v NORTH HERTS & STEVENAGE PRIMARY CARE TRUST [2004] UKEAT 0216_04_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0216_04_1110Case No Appeal No. UKEAT/0216/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR BARRY KAILAPPELLANTNORTH HERTS & STEVENAGE PRIMARY CARE TRUSTRESPONDENT
Before
His Honour Judge D Pugsley Mr D Chadwick Mr M ClancyDate 11 October 2004
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR DAMIAN BROWN (Of Counsel) Instructed by: Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN SUMMARY The Appellant suffered from a depressive illness. It is conceded that he was within the DDA 1995. He was suspended because of an alleged breach of professional practice. We accept the Appellant's argument that the decision failed to make findings – and evaluate the evidence. In a nutshell it was not Meek Compliant and against this backcloth it was difficult, if not impossible, to see whether that was a sufficient factual basis for its inclusion of Section 6 of the DDA. HIS HONOUR JUDGE PUGSLEY Mr Kail graduated as a dentist from the University of Durham in 1967. In 1971 he joined the Hertfordshire Community Dental Service and in 1979 he gained a post graduate qualification from the Royal College of Surgeons. His employment was transferred to the Respondents on 1 April 2001. Prior to the transfer of that employment the Applicant had considered that he had been falsely accused of harassment by members of staff at the Herfordshire CDS and he was off work with depression. He lodged his application in the Employment Tribunal claiming victimisation and that claim ended in an out of Court settlement.[2]Shortly after his transfer to the Respondent there was a meeting on 4 May 2001 to consider his return and it was proposed and agreed that there should be a phased return to work and this proposal was implemented.[3]On 19 November 2001 Miss Marshall the Clinical Director of CDS issued a memorandum dealing with cross infection control. On 21 December 2001 three dental nurses signed a report which suggested that the Applicant had not followed the guidelines laid down by Miss Marshall regarding the single use of instruments and it was suggested that the Respondent had carried out treatment on a patient without using a rubber dam. A decision was taken to suspend the Applicant and he was notified of his suspension on 24 December 2001.[4]On 3 January 2002 the Applicant was certified as being unfit to work due to depression and he was referred to the Occupational Health Department on 1 February 2002. The Respondent instituted a serious untoward incident inquiry and on 5 February 2002 the Applicant was notified of the recommendations of that inquiry which included the instigation of a disciplinary investigation. The Applicant's suspension was specifically reviewed on 28 February, 2 April, 23 April and 17 May 2002. On 23 May 2002 the Applicant was informed of the conclusion to the disciplinary investigation and on 30 May he accepted the recommendations for his return to work. His suspension was lifted on 5 June 2002 but he was not notified of the lifting of the suspension until 12 June. He has not returned to work.[5]It was agreed that the Applicant by reason of his mental state was disabled within the meaning of the Act and the issues before the Tribunal are summarised in paragraph 10 of the Decision namely:
"(1) Was there a s.6 duty under the Act upon the Respondent with respect to the Applicant in relation to: (a) The application of the Respondent's policy as to malicious complaints; (b) The fact and manner of the suspension of the Applicant; (c) The continuation of that suspension; (d) The procedure adopted until the lifting of that suspension. (2) If so, in each case did the Respondent take reasonable steps to avoid the Applicant being put to substantial disadvantage. (3) If not, in each case was the Respondent's failure justified, i.e. was the reason for the failure material to the circumstances of the particular case and substantial."
[6]The Tribunal after setting out the relevant law and pointing out the evidence they heard and the documentation set out its findings at paragraph 12 of its Decision:
"Findings 12. The Tribunal makes the following findings of fact:- (1) The Applicant is a person suffering from a disability within the meaning of the Act. (2) Dealing with the first of the agreed core issues, that is whether there was a s.6 duty upon the Respondent with respect to the Applicant in relation to the Respondent's policy as to the malicious complaints (a) The procedure included the requirement that three or more individuals had cause for concern before the Respondent would take action. This was a mechanism designed to reduce the possibility of malicious accusations and the policy was not that advanced by the Applicant that there had to be three witnesses an incident. (b) This procedure was put in place following the meeting on the 4 May 2001 to allay the Applicant's concern about what he perceived had occurred during his previous employment. (c) This arrangement did not put the Applicant at a disadvantage. 13. The fact and manner on the suspension of the Applicant:- (a) After the incident report was received by the Respondent on 21 December 2001 the Respondent sought advice from the Regional Office of the Health Authority and from a practicing clinician Andrew McCullough. (b) Following discussions with Linda Rodway, Sandra Herbert and Diana Grinstead, Jill Peters took the decision to suspend the Applicant and to treat the incident as a serious untoward occurrence. The Respondent concluded that there was a potential risk to patients and that the Applicant had failed to follow the policies and guidance laid down by the Respondent. (c) The Respondent's major concern was that the Applicant was apparently prepared to re-use orthodontic instruments (reamers) and that he did not use a rubber dam contrary to the Respondent's stated policy. This gave rise to concern about potential risk to patients. (d) We have heard a great deal of evidence as to whether the policy in question was appropriate or reasonable and as to whether the practices dealt with by the policy were in general followed by dentists outside the CDS. The Tribunal has neither the knowledge nor the expertise to make findings on matters of clinical practice nor is it necessary for it to do so. The fact remains that the Respondent had policies in place of which the Applicant was aware and the Applicant chose to ignore them. (e) The Applicant argues that the arrangement for suspending an employee place him at a substantial disadvantage against other employees as his depressive condition is reactive and in consequence suspension has extreme consequences for him. He goes on to argue that the Respondent was under a positive obligation to make reasonable adjustments to avoid these adverse consequences. (f) Dealing with the first part of this argument it effectively means that the Applicant is saying that because of his condition he should never be suspended. This in the Tribunal's view amounts to an assertion by the Applicant that the Respondent should treat him more favourably than it treats or would treat others. We find that in suspending the Applicant the Respondent did not place him at a substantial disadvantage as against other employees. The Respondent acted in an even handed manner. (g) If the Tribunal is wrong in coming to this conclusion we have considered the alternatives to suspension put forward by the Applicant and we have considered the Respondent's evidence as to why such steps were not taken. We find that the Respondent's suggestions were not practicable and that the reasons for the Respondent's failure to make the adjustments suggested by the Applicant were both material to the circumstances of this case and substantial. 14. The fair manner of the Applicant's suspension. (a) The Applicant has pointed to a number of incidents where he says the Respondents have not followed their own procedures. He complains inter alia of the manner in which he was informed of his suspension and suggests that as he was going on holiday after completing his surgery on the 24 December 2001 that the matter could and should had been left until his return. (b) While there were occasions on which the Respondent's procedures were not followed to the letter we find that such failures did not place the Applicant at a disadvantage when compared to someone who is not disabled. (c) We further find that given the Respondent's concern about the possibility of danger to patients they had no alternative but to suspend the Applicant on the 24 December 2001 and that their concern about such danger was material and substantial. The suspension was justified. 15. The continuation of the suspension and the procedure adopted until the lifting of that suspension. (a) The Applicant complains that his suspension should have been lifted much earlier than the 12 June 2002 the date which he was informed that his suspension had in fact been lifted. He complains that the Respondents did not deal promptly with the investigation into his alleged failure to follow the procedures and the possible consequences thereof. We find that the Respondents regularly reviewed the Applicant's suspension, that there was a regular contact between the Respondent, the Applicant and the Applicant's representative. Proper investigations and inquiries were made by the Respondent and although there were some delays these were in part contributed to by the Applicant. The conduct of the Respondent did not place the Applicant at a disadvantage when compared with a person who was not suffering a disability. (b) On the 20 January 2002 the Applicant informed his representative Mr Westwood that lifting the suspension was now less urgent and it would be some time before he was fit for work (page 323) and in his evidence to the Tribunal he said that lifting the suspension "next week" would not make the slightest difference. It is clear therefore from these statements that continuing the suspension did not place him at a disadvantage. (c) The evidence before the Tribunal suggests that it was the fact of the suspension, perceived as it was by the Applicant to be unjust and unnecessarily, that led to a decline in his health. The length of the suspension per se did not apparently contribute to this. We have dealt with the circumstances surrounding the fact of the suspension earlier in this decision. 16. Conclusion It is the unanimous decision of the Tribunal that the Respondent has not discriminated against the Applicant contrary to s.6 of the Disability Discrimination Act 1995."
[7]Leave was given to pursue two grounds of appeal namely that the Tribunal had not given adequate reasons for its decision failing to follow the guidance of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 and secondly that the Tribunal had misconstrued the requirements of s.6(1) of the Disability Discrimination Act 1991. The Sufficiency of the Reasons[8]It is the experience of all members of the Employment Appeal Tribunal that endless attempts are made to dress up what is essentially a demand for a re-hearing as an issue of law based on the alleged inadequacy of the reasons for the conclusion reached and the failure by a Tribunal to make specific findings of fact.[9]We take as our guiding light a decision not cited to us namely the House of Lords' decision of Piglowska v Piglowski [1999] 3 All England 632. That case concerns the division of the matrimonial assets following the breakdown of the marriage. However, in the speech of Lord Hoffman at 643 onwards there are wider issues ventilated in particular the dangers of an appellate court seeking to substitute his own view of the matters and a clear warning is given that a appellate court:
"should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
Further Lord Hoffmann points out that:
"To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness."
[10]We take as our guiding principles that it is wrong for those sitting in the judgement of the decision of a lower court or tribunal, with all the specious wisdom of hindsight, to reverse the findings of fact of a lower tribunal not only as to the specific facts found but as to an evaluation of their significance. This is particularly important where the fact finding body, a tribunal, has the collective wisdom of three people rather the view of an individual judge. We note that decisions such as Meek v City of Birmingham District Council [1987] IRLR 250 , Varndell v Kearney & Treker Marwin Ltd [1983] ICR 683, and more recently the Court of Appeal decision in English v Emery Reimbold & Strick Ltd [2003] IRLR 710 have sought to set out the approach that should follow when courts or tribunals are alleged not to have given adequate reasons.[11]It is trite law to say that each case must depend on its own facts and the difficulty is not the formulation of guidelines but the application of such guidelines to the facts of a particular case. We note that in a personal injury claim for an injury arising from work or a highway collision the fact finding process is in many cases contained within a very small compass of both time and relevant considerations. In the area of employment law tribunals often have a much more difficult task in evaluating matters which did take place over weeks, months and in sometimes years. We pay tribute to the way in which tribunals repeatedly have been able to distil factual findings of matters of great complexity which have taken place over a long period of time in clear and comprehensive concise terms. The older employment cases used to avert to the fact that industrial tribunals as they were called were essentially industrial jurors. As with a jury in a criminal trial we consider it appropriate to point out that it is not for either the advocate or the judge to dictate to the jury the agenda which they must consider, Juries in criminal trials are frequently told that the fact that the judge emphasises a particular point, or alternatively fails to mention a particular point, is not a matter that should confine or constrict the deliberations of a jury. We do not consider that it is for an advocate to dictate to a tribunal what issues of fact are ultimately going to be determinative as to the decision it may reach.[12]At the conclusion of the hearing Mr Kail apologised to us that he had become somewhat agitated in addressing us and pointed out that he had not taken his medication because he feared that he would be unable to deal with the tribunal due to the soporific effect taking such medication has. We do not apologise for the fact that we have taken a somewhat interventionist view as to what issue are relevant and we note that Mr Kail had with him friends, who although taking part in the proceedings, were there to support him. We cannot but note at times their expressed, but whispered, words and their body language were such they thoroughly approved of the tribunal trying to confine Mr Kail to the points that he had raised in his written skeleton argument rather than seeking to go into excessive detail or deviating from the central thrust of his skeleton argument.[13]We accept that the issue which is raised in this case is a matter of greatest concern. Those who are concerned with the provision of healthcare facilities to the public have a overarching and overriding duty that the medical procedures which are adopted are safe and are perceived by the public to be safe. Legislation on grounds of equality of treatment based on disability has to be seen in a context that those providing healthcare facilities cannot compromise the professional standards required for the protection of the public.[14]It would be invidious if employment law was to ascribe to particular groups of employees, namely those with professional qualifications, (who have highly paid and high status jobs) any greater protection than is afforded to all employees however humble their position in an organisation. However, it is a glimpse of the obvious to state that the complexity of issues may be very much greater when one is dealing with a disciplinary sanction against a person arising out of the exercise of that professional skill and discretion than one who is dealing with a person whose task is much more straightforward not to say humdrum. The office boy suspected of stealing from the petty cash fund has as much right to the protection of the law as the finance director against whom the allegation of financial irregularities of personal gain is made. Both disciplinary procedures must be fair. The circumstances of one case may require a more sophisticated investigative procedure in order to be fair than the comparatively simple facts that may relate to the suspicions about the office boy stealing a couple of pounds from the petty cash box.[15]In paragraph 13(c), (d), (e), (f) and (g) which have already been set out we note that the Tribunal stated that it has neither the knowledge nor the expertise to make findings on matters of clinical practice nor it is necessary for it to do so. The Tribunal concluded that the fact remains that the Respondents had policies in place of which the Applicant was aware and the Applicant chose to ignore them - Paragraph 13(d). Later on at paragraph 13(g) the Tribunal said this: (g) If the Tribunal is wrong in coming to this conclusion we have considered the alternatives to suspension put forward by the Applicant and we have considered the Respondent's evidence as to why such steps were not taken. We find that the Respondent's suggestions were not practicable and that the reasons for the Respondent's failure to make the adjustments suggested by the Applicant were both material to the circumstances of this case and substantial. We note there seems to be an error and that the last sentence should read 'that the Applicant's suggestions were not practical.'[16]The difficulty is that we consider the Appellant has a legitimate concern that the issues which were raised have not been fully dealt with by the Tribunal. Of course, there is no duty on a Tribunal as has been repeatedly re-iterated to make extensive findings of fact of subsidiary issues; however there is a duty on a tribunal to give reasons and not to allow the conclusions it reaches to become its reasons. This Tribunal heard approximately 5½ days' evidence of 7 witnesses whose written statements exceed 70 pages and it had before it 700 pages of documentation and 25 pages of written submissions. However commendable modesty and brevity are as judicial characteristics nevertheless we are unitedly of the view that the Tribunal does not set out with sufficient particularity the issues that were before the Tribunal. The Tribunal made no findings, although there is information before them, as to the extent which the Respondent could legitimately continue to consider there was a risk of cross infection after they have taken professional advice about the matter. Anyone reading the decision would not know why the alternative to suspension is not practical - paragraph 13(g); why the Respondent's failure to take such steps were either material to the circumstance of this case and substantial - paragraph 13(g); the occasions upon which the Tribunal found the Respondent did not abide by its own procedures - paragraph 14(b); the basis upon which the Tribunal concluded that those failures did not place the Appellant at a disadvantage when compared to somebody who is not disabled - paragraph 14(c); the basis upon which it concluded that the Respondent's concern about danger to patients was material and substantial - paragraph 14(c); in what ways the delays were said by the Tribunal to have been contributed to in part by the Appellant - paragraph 15.[17]It is difficult to reconcile paragraph 14(c) of the decision where the Tribunal find that:
"given the Respondent's concern about the possibility of danger to patients they had no alternative but to suspend the Applicant on the 24 December 2001 and that their concern about that danger was material and substantial" when in paragraph 13(d) the Tribunal commit themselves to the self denying ordinance that "it had neither the knowledge nor the expertise to make findings on matters of clinical practice nor is it necessary for it to do so."
[18]In his submissions to the Tribunal considering the preliminary issue Mr Damian Brown submitted that, if contrary to the contention of the Respondents, the reasons were inadequate this matter should be remitted to the same Tribunal in accordance with Emery and the practice of this Tribunal for the Tribunal to make further findings.[19]The difficulty about that solution is that it is to require the Tribunal to make findings of fact without taking into account the chequered procedural history of this case. The case started in February 2003 but the decision was only promulgated on 5 January 2004. Unfortunately one of the witnesses became ill and that caused a delay of several months.[20]The idea of remitting this case back to be heard afresh by another Tribunal is one that evokes the greatest degree of concern on the grounds of the public expense involved, the inconvenience to the parties and the sheer delay but we have reluctantly reached the conclusion that it is the only approach that we can adopt. Apart from the question of the practicability of asking the original Tribunal to make subsidiary findings of fact we do consider that that would not be a fair way in the context of this case. Quite simply, although we fully appreciate the difficulties under which the Tribunal laboured, we consider that the Tribunal have not based the central structure of their decision on sufficiently strong foundations for anyone to consider it could now make subsidiary findings of fact. Sadly it is necessary that another Tribunal considers again the whole issue as to whether the Applicant has been discriminated against contrary to the provisions of the Disability Discrimination Act. The Tribunal has not made a crucial finding as to whether the Applicant was in breach of the Respondents' policy, or whether, not only were they in breach of the Respondents' policy, but the way he acted gave rise to justified clinical concern. It has not examined, analysed and evaluated the duties of the Respondents in relation to the public at large and also their duties in relation to the Applicant having regard to the vulnerable mental state in which he was. In these circumstances we allow the appeal and direct that the matter be re-heard by a fresh Tribunal.