Appeal No.	 EAT/1329/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 2000

Before
HIS HONOUR JUDGE H WILSON
MR J R CROSBY
MRS T A MARSLAND

R SPENCER THOMAS LTD	APPELLANT

MR J S HOLDSTOCK	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	

	APPEARANCES

For the Appellant	MR D J DOUGLAS LL.B
76 WESTGATE PLACE
LOUTH 
LINCOLNSHIRE
LN11 9YD	

JUDGE WILSON:-

1.	This has been the preliminary hearing of the proposed appeal and the Respondents of the Original Application against the finding in favour of the Applicant by the Employment Tribunal sitting in Bedford last year.  

2.	The Respondent company has been represented by Mr Douglas.  The short facts of the matter are that the Applicant had been employed as a farm labourer handyman for many years by the Respondent company. From time to time in the course of that employment, he had come into contact organo-phosphates when working in the grain dryer and when beetle infestation had to be dealt with. There were adverse effects on him and he was off work and the Respondents wrote to him saying they were considering capacity as a reason to terminate his employment.  They wanted him to attend the doctor for examination but he refused saying it was premature.  When disciplinary procedure was invoked the Applicant said that he would visit his own doctor. He took a letter requesting the report to the Doctor named by the Respondent and mentioned a Guys Hospital appointment made for him by his G.P.  Dr Riding terminated the consultation with the Applicant and he was subsequently suspended again.  Later, on the 1st February last year, a letter of dismissal was issued for gross misconduct.  	There was an appeal in which Mr Bates, who had been present at the disciplinary hearing itself as an observer, conducted the appeal and dismissed it.  The Tribunal found that the Applicant had been unfairly dismissed.  

3.	In his submissions today, Mr Douglas initially relied upon the fact that the Tribunal had invoked the principles of the Human Rights Act, complaining that that was wrong because the Act is not yet in force.  That, of course, is quite true, but the higher courts had made it quite plain that judgments should be given in the spirit of the Act which is to come into force later this year.  Beyond that, Mr Douglas places repeated reliance on the fact that the Tribunal made many references to the provisions of section 3 of the Access and Medical Reports Act 1988.  He says that was quite irrelevant.  The Act did not apply and what governed the action of the Employers was their obligations under other statutory and regulatory provisions which overrode anything else.  

4.	It seems to us that there is no prospect of success for this appeal if it is argued fully because Mr Douglas’ argument demonstrates a total failure to understand the purpose of section 3 and its interpretation.  That interpretation is in the context of section one of the Act which defines the right of access as follows:-

“It shall be the right of an individual to have access in accordance of the provisions of this Act to any medical report relating to the individual which is to be, or has been supplied by a medical practitioner for employment purposes or insurance purposes.”

5.	Another objection taken by Mr Douglas is that there was no evidence about insurance being involved in the request for a medical report.   The fact remains that it is unarguable that the only reason which would justify a request for a medical examination arose out of the employer/employee relationship and therefore it was not inappropriate for the Tribunal to deal with the Act in the way which they did.  Having said that, quite apart from anything else, the common-law rights of the individual are important and were clearly not taken into account it was the general practitioner who pointed out it would be wrong to examine anybody without their agreement.  

6.	Accordingly, in our view, there is no prospect of success for this appeal on full argument and it must be dismissed at this stage.