Appeal No.	EAT/1032/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MR R N STRAKER

MR A EVANS	APPELLANT

THE GOVERNORS OF PALATINE SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS M LAZARUS
(of Counsel)
Messrs Marsh Ferriman & Cheale
Solicitors
11 Liverpool Gardens
Worthing
West Sussex BN11 1SD	
For the Respondents	RESPONDENT NEITHER PRESENT NOR REPRESENTED	

	JUDGE PETER CLARK:  The Appellant, Mr Alan William Evans, was employed by West Sussex County Council as a teacher at Palatine School, Worthing, from September 1983 until his dismissal effective on 31 March 1997.  The decision to dismiss was taken by the Governors of the School, and they have been named as Respondent to his complaint of unfair dismissal by an order for substitution made on 10 June 1997.

	The background to his dismissal, according to his form IT1, is as follows:  In November 1994 he was knocked from his bicycle and sustained injury to his back.  He returned to work initially on 7 November 1995, but by the end of that day felt barely able to walk.  He took time off work until January 1995, returned for a few months until September 1995, and then went off work, never to return before his dismissal.  In April 1996 he spend two to three weeks in hospital as an in-patient following surgery.

	A meeting of the Governors took place on 4 November 1996 at which a decision was taken to recommend to the County Council that the Appellant’s employment be terminated on the ground of ill-health.  He appealed unsuccessfully to an internal Appeals Panel and his employment was formally terminated on 9 January 1997, with effect from 31 March.

	In support of his complaint the Appellant contends that his dismissal was both procedurally and substantively unfair.  As to the latter, it is said that the Appellant was not given an opportunity to obtain his own medical evidence;  that he was not allowed to see all the documents relied upon by the Governors in reaching the dismissal recommendation decision and, further, that the Respondent relied upon medical reports prepared by two medical practitioners, Dr Brownfield and Mr Ring who, it is alleged, did not carry out a thorough examination of the Appellant, nor carry out a proper investigation into his medical history.

	The claim is resisted by the Respondent.  It is said that the Appellant had every opportunity to produce his own medical evidence, insofar as it conflicted with the Respondent’s medical advice, which was to the effect that he would not be fit to return to work in the foreseeable future.  

	Dr Brownfield prepared a report on the instructions of the County Council in connection with the Appellant’s employment position.  Mr Ring, a consultant orthopaedic surgeon, was instructed by the Council in connection with a claim on behalf of the Appellant on the Council’s personal accident policy.  Mr Ring saw the Appellant and wrote a letter to the Council on 30 October 1996.  It appears that the final paragraph of that letter, containing his opinion, was copied to the Governors and was taken into account by them in reaching their decision on 4 November 1996, according to the minutes of their meeting held on that day and, more particularly, a letter from Mr Gunn, the chairman of the Governors, to the Appellant dated 5 November.

	On 10 June 1997 a Chairman of Industrial Tribunals, Mr M J Davey, sitting at Southampton, considered an application made on behalf of the Appellant for discovery orders against the Respondent.

	As appears from the Chairman’s extended reasons dated 7 August 1997, he ordered discovery of Dr Brownfield’s notes and jottings made at the time of his examination of the Appellant and further ordered disclosure of the complete letter from Mr Ring, dated 30 October 1996.  However, he refused to make the following orders further sought by the Appellant:

“i)	Original notes, jottings and correspondence made by Mr Ring in relation to his assessment of the applicant  
ii)	Notes, jottings, correspondence and memoranda between the respondents and medical experts Mr Ring and Dr Brownfield produced prior to the commencement of proceedings
iii)	Copy extract of Mr Ring’s diary for 3 November 1996 with the identity of the patients [save for the Appellant] deleted”

	In so ruling, the Chairman drew a distinction between Dr Brownfield, who was specifically instructed to give an opinion as to whether the  Appellant was fit for work, and Mr Ring, who was instructed for the purposes of an insurance claim.

	In this appeal we are urged by Ms Lazarus to conclude that such a distinction is illogical and, therefore, perverse, particularly where an order was made for disclosure of the whole of Mr Ring’s letter of 30 October 1996, even although the Governors were only in possession of the concluding paragraph of that letter at their meeting held on 4 November 1996.

	Having considered her submissions, based in part on the principles contained in Ford Motor Co Ltd v Nawaz [1987] IRLR 163, to which the Chairman was referred, and the written submissions of the Respondent, which has not appeared before us today, we uphold the Appellant’s contention for the following reasons:

(1)	the question is whether the discovery sought is necessary for the fair disposal of the proceedings;
(2)	there is evidence, including the notes of the Governors meeting of 4 November and a letter to the Appellant of 5 November 1996, that the Governors took into account Mr Ring’s opinion when reaching their decision to dismiss.  Indeed, the Chairman found in his reasons that Mr Ring’s opinion was one piece of information which the Governors had before them when they made their decision.
(3)	in these circumstances the principle in Nawaz, that management must bear responsibility if it is shown that their medical advisers have carried out an inadequate investigation in reaching their conclusion, applies to the report of Mr Ring insofar as it was relied upon by the Governors in reaching their decision to recommend dismissal.  The fact that Mr Ring’s opinion was sought by the Council in connection with an insurance claim is nothing to the point where it has been supplied to the Governors and forms part of the material on which they reached their decision.  Of course, we express no view as to the adequacy of Mr Ring’s investigation.  That will be a matter for the Industrial Tribunal hearing the substantive complained.

(4)	Finally, confidentiality.  Had the Council not supplied Mr Ring’s opinion to the Governors we accept that his report and associated documentation would not be discoverable in these proceedings.  However, it seems to us that any confidentiality has been waived by both the Council and the Governors in the present circumstances.

	It follows, in our judgment, that the Chairman fell into error in refusing to make the order sought.  We shall allow the appeal and, exercising our powers under s.35(1) of the Industrial Tribunals Act 1996, order discovery in the terms earlier set out in this judgment, there being no specific challenge by the Respondent to the form of order sought, as opposed to the grant of an order in principle.

	Finally, we order the Appellant’s legal aid taxation.