Appeal No. EAT/958/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 May 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR J HOUGHAM CBE
MR N D WILLIS

MR T W PATERSON	APPELLANT

COUNCIL OF THE CITY OF NEWCASTLE UPON TYNE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or on 
behalf of the Appellant 	

JUDGE PETER CLARK

1	This is an appeal by Mr Paterson, the Applicant before an Employment Tribunal sitting at Newcastle Upon Tyne, chaired by Mr N W Garside, on 22 - 23 April 1999, against that Tribunal’s Decision promulgated with Extended Reasons on 14 July 1999 dismissing his complaints of unfair and wrongful dismissal.  

2	The Appellant commenced work with the Respondent Council in December 1978, originally in the Education Department, Treasurers Department as a local management of schools officer.

3	From about 1994 he exhibited behaviour which gave rise to concerns over his mental health.  During 1997 medical opinion was taken from a number of medical practitioners.  One doctor, Dr Black saw the Appellant on 2 December 1997 and formed the view that there was a degree of paranoia in his description of earlier events.  The consensus of medical opinion was that he was suffering from a stress-related disorder with anxiety and depressive symptoms.

4	Eventually the Council’s early retirement procedure was invoked.  Reluctantly the Appellant, who had trade union representation, accepted that he was unfit for work and would be for the foreseeable future.  That was the view of the doctors.  He was medically retired in circumstances amounting to a dismissal on 11 May 1998.

5	He complained that his medical condition had been caused by institutionalised bullying following his disclosure of alleged irregularities to the Council’s auditors dating back to 1991.  The Tribunal directed themselves, following the EAT Decision in London Fire and Civil Defence Authority v Batty [1994] IRLR 384, that whereas in this case they were satisfied that the reason for dismissal related to his capability, it was not for them to investigate whether the alleged behaviour of the Respondent caused his medical condition.

6	They considered, on conventional lines indicated by cases such as East Lindsay District Council v Daubney [1977] ICR 566 and Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, whether the employer had carried out a reasonable enquiry as to the true medical position; they found that it had and whether, in all the circumstances, the employer could be expected to wait any longer before terminating the employment; they could not.  The Council had provided support where needed, the procedures were properly followed.  The dismissal was fair.  

7	Against that Decision Mr Paterson has appealed by a Notice dated 6 August 1999.  He has supplemented his grounds of appeal by a Skeleton Argument.  On 25 May we received notification from the Appellant indicating that he would not be attending this preliminary hearing, already delayed for some time at his request.  He feels unfit to attend for medical reasons and asks us to treat his submission as made by way of the Skeleton Argument.  

8	In these circumstances we have proceeded to consider the appeal on the papers.  The Appellant raises the following points:
(1) that the Respondent was in breach of contract in that the Council destroyed the necessary relationship of trust and confidence by their behaviour since 1991.  

It seems to us that such a contention would be relevant to the question of whether or not the Appellant was dismissed.  Were the Respondents in fundamental breach of the implied term of mutual trust and confidence?  However, dismissal was found to have occurred in this case.  That having been established the question for the Tribunal was whether the Respondent had shown a potentially fair reason for dismissal.  The Tribunal found that they had, capability.  That, on the facts as found, was a permissible finding in our judgment.

(2) As to the question of dismissal, the Appellant complains that having been permitted, at an earlier directions hearing, to amend the Notice of Appearance to deny dismissal, when the matter came before the Garside Tribunal for hearing the Respondent was permitted to go first.  It seems that dismissal was then admitted.  That seems to us to be a procedure which the Tribunal was entitled to adopt.  

(3) He makes complaint about the Chairman’s conduct of the proceedings.  Having considered the Appellant’s affidavit and exhibits sworn in these proceedings on 13 September 1999 and the Chairman’s comments dated 27 September we are unable to detect any arguable complaint of bias or the appearance of bias in the Chaiman’s handling of the proceedings.  

(4) On the substantive decision, Mr Paterson seeks to distinguish the case of Batty.  He submits that here the Respondent did not carry out proper enquiries and adopt a fair procedure in investigating his medical position.  Having considered the Tribunal’s findings we have no hesitation in holding that they were entitled to conclude that reasonable steps had been taken by the Respondent to investigate that central question.  

In short, we can see no grounds in law for interfering with the Tribunal’s Decision.  This appeal is dismissed.  

Finally in his Skeleton Argument Mr Paterson makes a protective application for permission to appeal to the Court of Appeal in the event that we dismissed this appeal.  We have considered that application.  It seems to us for the reasons given by the Employment Tribunal and the reasons given in this judgment that any further appeal by Mr Paterson has no real prospect of success, and accordingly permission is refused.