Appeal No.	 EAT/252/95
		 EAT/253/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J HODGKINS CB
MRS M T PROSSER

DR R GARG	APPELLANT

WOLVERHAMPTON HEALTH AUTHORITY & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	DR R GARG
(in person)	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether Dr Garg has an arguable point of law in relation to two Notices of Appeal which have been filed in this case.   

	The first Notice of Appeal relates to a decision of an Industrial Tribunal which was reduced to writing and was sent to the parties on 16 December 1994.   It is worth noting that the reduction to writing of that decision was in respect of a hearing which had taken place before the Industrial Tribunal on 1 September 1993.   The reasons for the significant period of delay between those two dates may be a matter in issue between the parties but is not something that arises, as we see it, on this appeal.

	The second Notice of Appeal relates to a decision of the Industrial Tribunal which was sent to the parties on 17 January 1995 refusing Dr Garg’s Application which had been made for a review of the decision to which I have just referred.   

	The background to these appeals should be set out because it can be somewhat confusing and we hope that by setting out these facts it will become easier for the Employment Appeal Tribunal to focus on the remaining issues which are fit for hearing by a full panel of the EAT.   

	Dr Garg was or is engaged by Wolverhampton Area Health Authority or its predecessor as a locum or consultant psychiatrist.   During the course of his employment, on 8 October 1992, he says that he was attacked by a patient who caused him substantial and severe personal injury involving a fracture to his skull and the partial loss of sight in his right eye.   He continued in the employment of the Health Authority and there is an issue as to whether his employment has ever been terminated.

	Dr Garg presented a complaint to an Industrial Tribunal on 30 March 1993 in which he asserted that his employment began on 22 June 1991 and ended on 31 December 1992 and that the matters of which complaint was being made occurred on 31 December 1992.   In box 1 of his IT1 he had put ‘racial discrimination contrary to Race Relations Act 1976’.   He attached as an annexure to paragraph 10 of his IT1 a typescript statement of two pages together with enclosures running to 11 pages.   In the typescript annexure he asserted that his employment with the Health Authority began on 22 June 1991 and was wrongfully terminated on 31 December 1992 without just cause or excuse.   

	He also asserted that the Health Authority had violated a number of his rights in other respects.   Firstly that there had been an unlawful deduction from his wages in respect of rent.   Secondly that he had an unlawful deduction from his wages in relation to statutory sick pay and contractual sick pay.   He alleged that the Authority had broken their statutory obligations to notify the appropriate authorities of the accident at work, to which I have referred. 

	At the Industrial Tribunal hearing which took place in 1993 the purpose was to enable the Industrial Tribunal to identify what appeared to it to be the relevant issues and to determine whether there was any matter which was being alleged which was out of time.   The Tribunal approached the case on the basis that there was a complaint of unlawful discrimination in relation to an alleged dismissal and asked themselves the question as to what was the effective date of termination of the employment, because if it was, as the hospital had contended, 30 November, then the complaint had been presented out of time, but if it was, as was being asserted, apparently, in the IT1 that the employment had terminated at 31 December then it was within time.

	The Industrial Tribunal concluded that it was presented within time because his employment with the Authority continued until 31 December 1992.   Accordingly they had jurisdiction and, in any event, they would have exercised their discretion to extend time for that complaint, as a question of discretion had arisen, because a confusing approach had been adopted by the hospital Authority in relation to his employment, referred to in the letter of 29 October 1993, at page 171 and 172 of our file.

	The Industrial Tribunal did not deal with any of the other issues which were apparently in the annexure to paragraph 10 of his application to the Tribunal.   In particular, it did not deal with paragraphs 1 and 5 of it, which deal with unlawful deductions from his wages.   

	It is Dr Garg’s contention before us that much of what was said in his IT1 was misconceived.   He says, in truth he never was dismissed, that he is still employed by the Wolverhampton Health Authority and therefore he has no complaint of unlawful dismissal for race reasons nor would he have a complaint within the Tribunal’s jurisdiction in relation to redundancy assuming, although he says it must remain in doubt, that the Industrial Tribunal would have had jurisdiction to consider a claim for a redundancy payment having regard to what was said in a letter on behalf of the Authority dated 8 September 1993, referring to an amendment to section 99(1)(c) of the 1978 Act.  

	On that basis - that is that Dr Garg would assert that he has not been dismissed - it seems to us that the only potential matters which are extant, looking at his IT1 are, as I have indicated, the alleged unlawful deduction from wages and then only in relation to the payment of wages for the month of December which Dr Garg says he received on 31 December.   That complaint,  therefore, would also be within time.

	It would appear, and was confirmed by Dr Garg, that the Authority recognised that they had mishandled the position of Dr Garg as an employee of theirs.   That they had been lacking in understanding about his health.   That they had been making deductions in relation to  rent which were not justifiable and they expressed great regret for the approach which had been adopted and offered sincere apologies and indicated that monies that were owing would be paid to him.

	Dr Garg told us that the hospital sent him a cheque for some monies but he returned it.   He says that he was not prepared to accept what they were saying and, I think, would wish to argue before the Industrial Tribunal that he is entitled to an adjudication in his favour, if the facts are there, that he has been the victim of an unlawful deduction from his wages.

	This is a Preliminary Hearing.   Therefore it is not possible for us to give any kind of final, definitive ruling on those issues relating to unlawful deduction from wages and we simply give this judgment in the hope that the picture will be more clear when the matter comes back before us again.   I propose, in the circumstances, that we should make no order at this time other than to adjourn this Preliminary Hearing for it to be resumed inter partes.   I do that in the hope that we will be able to review this case, or revisit it, at an early date.   It may be that the Health Authority will take the view, having looked at the judgment, that there is no need for any further resumed hearing and, if they are of that view, they can, of course, inform us, provided, obviously, that they copy the letter to Dr Garg at the same time.    Therefore the only order I make is that this matter should come back before me and my colleagues - if they are agreeable to that - inter partes, when we will finally determine how this case should then proceed.   If needs be we are prepared to deal at the resumed hearing with the full appeal, if it should arise.

	It seems to us that on that basis there may be nothing further in relation to the second appeal against the refusal of the Industrial Tribunal to review their first decision,  but that is a matter which can be addressed at the resumed hearing.