Appeal No. EAT/0578/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR A E R MANNERS
MR H SINGH

MRS S JOHNS	APPELLANT

THE GOVERNING BODY OF ELM PARK SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR OLIVER HYAMS
(Of Counsel)
Instructed by:
Messrs Elliotts
Solicitors
25 The Mall
Clifton
Bristol
BS8 4JG	

For the Respondent	
MS IJEOMA OMAMBALA
(Of Counsel)
Instructed by:
South Gloucester Council Legal Services
Castle Street
Thornbury
BS35 1HF	

JUDGE McMULLEN QC

1.	This case is about disability discrimination and Employment Appeal Tribunal procedure.  We will continue to refer to the parties as Applicant and Respondent.  It is an appeal by the Applicant in both proceedings against the decision of an Employment Tribunal sitting at Bristol, Chairman Mrs O R Harper, promulgated with Extended Reasons on 20 March 2002.

2.	The Applicant and the Respondent were represented by Counsel, Ms Omambala for the Respondent at both levels and Mr Hyams, appearing today as he did at the Preliminary Hearing.  The Applicant claimed unfair dismissal and disability discrimination.  The Respondent contended that the Applicant had been the subject of consensual termination of the contract of employment and denied disability discrimination.

3.	An Employment Tribunal at an earlier stage dismissed the Applicant’s claim for unfair dismissal and in directions ruled that it should concern itself solely with the Applicant’s claim that the Respondent had breached the Disability Discrimination Act 1995.  The matter came before the Employment Appeal Tribunal presided over by Judge Serota QC on 23 August 2002 and directions were made for this full hearing.

4.	Notwithstanding the short notice given for this appeal both Counsel prepared careful skeleton arguments which had been placed before us together with relevant authorities and we are grateful to them for submissions they have made in an expeditious way this morning.  

The appeal
5.	The basis of the appeal is that the Employment Tribunal failed correctly to recognise what was an actual dismissal and failed to regard the Applicant as dismissed by reason of her disability.  The Respondent contended that the Tribunal reached the correct conclusion.  The Tribunal decided that the Applicant had not been unlawfully discriminated against either in the treatment of her termination or in the arrangements made reasonably to adjust the circumstances so as to accommodate the Applicant’s admitted disability.

The facts
6.	The Applicant was employed as a class teacher and Special Education Needs Co-ordinator at the Respondent school from 1971 until the contract was terminated on 31 October 1999.  In 1998, the Applicant underwent surgery.  During a telephone call between the Applicant and Mr Holder, of the personnel department of South Gloucestershire County Council on behalf of the Respondent, it was suggested by Mr Holder that the Applicant contact her trade union to act on her behalf because the Applicant told him that she was distressed about talking about her surgery and her continuing absence
.
7.	The Applicant had the advantage to be a member of the specialist trade union the ATL and on 6 December 1998 its officer Miss Rodriguez signed a letter directed to the Chairman of the governors of the school saying this:

“I am writing to inform you that during my illness I wish all contractual discussions to be conducted through my professional association A.T.L.  Please contact Veronica Rodriguez and the addresses given.
Yours sincerely
Sue Johns”

It is accepted by Mr Hyams today that that is a grant of actual authority by the Applicant in her position as principal to her agent either Miss Rodriguez or Mr Main, an executive member of ATL to conduct all contractual discussions on her behalf. 
 
8.	Following that letter the Applicant was examined by a consultant occupational physician Dr Yarnley who considered whether or not the Applicant could be returned to school in one or other part-time posts or in a different post.  It was however determined that no full-time post or part-time post was available.  The Applicant at this time was also examined by her General Practitioner who confirmed that she was suffering from a serious depressive illness.  The Applicant was again referred to Dr Yarnley who in turn referred her to a consultant psychiatrist in March 1999 who advised as follows:

“She has however got a rather fixed idea in her mind that she now cannot cope with returning to teaching.  I get the impression that she is looking to be medically retired and I suspect I shall be asked for a report on this in weeks to come.”

9.	At around this time (February 1999) the Applicant’s trade union representative spoke to Mr Holder who suggested an informal meeting to discuss the way forward with possible options including rehabilitation.  Mr Holder, as the Tribunal put it, obtained an agreement from Miss Rodriguez to telephone the Applicant.  The Applicant was hesitant but agreed to contact Miss Rodriguez with suitable dates.  This is a second indication of a direct relationship of principal and agent between the the Applicant and her trade union.  That meeting did not take place.  Mr Main took over the Applicant’s case and advised Mr Holder that the Applicant wished to pursue ill-health premature retirement.

10.	Appropriate forms were sent to the Applicant but the application was rejected.  A further application was made for premature retirement on efficiency grounds which was again rejected.  Shortly thereafter Dr Yarnley was again asked to report.  His report was the subject of a dispute before the Tribunal which ruled that Dr Yarnley had advised that the Applicant would not be in a position to return to any sort of work for 6 months and indeed her progress was not clear after that.

11.	Shortly after 8 October Mr Main, on the Applicant’s behalf contacted Mr Holder and advised him that the Applicant did not wish to make representations to a committee of governors regarding her continued employment with the Respondent.  By telephone he explored the possibility of a termination settlement by way of a tax-free termination payment in lieu of notice equivalent to 12 weeks’ full pay.  The Tribunal then found this:

“This was discussed and it was agreed between the respondent and on behalf of the applicant by the legal department of ATL that the applicant’s employment would terminate on 31st  October 1999 with a tax free termination payment.  As a result of those discussions a letter, the contents of which were agreed with the Union, was sent to the applicant.”

It is necessary to refer to the details of this letter.  It is from South Gloucestershire County Council, signed by Mr Holder saying this:

“I am writing further to my letter dated 8 October 1999 concerning your long term absence from Elm Park Primary School, and also referring to the most recent report received from Dr Yarnley, Occupational Health Physician.

In view of Dr Yarnley’s opinion that it will be a further six months before a return, even in a part-time capacity can be explored , the Governing Body of Elm Park School consider that your post as Teacher can no longer be kept open and it is proposed to terminate your employment.

You will be aware from the ill health procedures “Managing Prolonged Sickness Absence”, forwarded to you earlier in the year that, where it is proposed to dismiss the employee, a Governors’ panel must consider the case at a meeting to which you would be invited together with your representative.

From discussions I have held with John Main (ATL), I understand that you do not wish to make representation to the panel and it is therefore proposed to terminate your contract of employment on the grounds that you are incapable of undertaking the duties of your post due to ill health.

I would propose to terminate your contract with effect from 31 October 1999 and, in recognition of your service with South Gloucestershire Council, make you a tax-free termination payment in the sum of £6,005.88 in compensation for loss of office.  This payment will be paid on or before 14 November 1999.

I am sorry that your period of employment with South Gloucestershire Council has come to an end in this way and I hope that your health improves in the future.

Will you kindly acknowledge receipt of this letter using the copy provided.”

12.	The letter was copied to the head teacher, Mr Freeman.  It was not copied to the trade union.  The Applicant, on 29 October 1999 wrote back on a pro forma saying:

“I acknowledge receipt of the letter dated 26 October 1999 giving formal Notice of Dismissal from my teaching post at Elm Park Primary School with effect from 31 October 1999.”

That letter therefore expands on the Tribunal’s finding that the Applicant did not wish to make representations to the Governors.  Such a representation would only be necessary if there were tp be consideration by the Governors pursuant to the statutory procedure as to whether or not the employment should be terminated on the grounds of ill health.

13.	The relationship with the Respondent thus came to an end.  The Tribunal found that in the acknowledgment of the letter there was no suggestion at that date that she objected to the course of action therein described.  

Conclusions on the issues
14.	The Applicant contended that she had been dismissed.  That is the first issue.  She then contended that the Respondent had dismissed her by reason of disability and had failed to make reasonable adjustments for her.  It was common ground that the Applicant is disabled.  At the time she suffered from depression and it included a fear of entering schools.  She could not enter a school without feeling ill.  She had panic attacks and could go nowhere near the school where she suffered vivid nightmares of school scenes.

Ground 1: the construction of the letter
15.	Disability was not in issue. The first ground of appeal concerns the construction of the letter which we have cited in paragraph 11 above.  On its face, it looks like a notice to terminate.  Notwithstanding the conjectural use of the word “proposed”, we take the view that without more this is indicating a notice given to the Applicant that her contract will be terminated.  It is backed up by the pro forma which the Applicant signed drafted by Mr Holder which refers to formal notice of dismissal. That ground of the attack today is easily disposed of in favour of the Applicant.  

Ground 2: the context of the letter
16.	The second ground concerns the Tribunal’s approach to looking at the context in which that letter was written.  It is common ground before us that the Tribunal was entitled to look at the background.  Reliance was placed by both Counsel on the speech by Lord Steyn in Mannai Ltd v Eagle Star Ass. Co. Ltd [1997] AC 749 at 768.  Lord Steyn he laid down the rules for the construction of contracts particularly those dealing with unilateral notices which is what appears to be the impact of the letter in our own case.  Lord Steyn said this:

“First, in respect of contracts and contractual notices the contextual scene is always relevant.  Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant.  But admissibility is not the decisive matter.  The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation.  That depends on what meanings the language read against the objective contextual scene will let in.  Thirdly, the inquiry is objective; the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind.”

17.	In that case the parties to a lease were subject to a break clause which could be operated on 13 January.  Notice by the tenant to terminate on 12 January had to be read not literally but in the context of the parties’ actual knowledge reasonably determined.  The old rules of construction, by which it was forbidden to take a broader approach, were expressly eschewed.  See also the judgment of Lord Hoffmann.  As to the three points made by Lord Steyn no objection is taken as to the first and second.  

18.	The real issue in this case is what reasonable persons in the circumstances of the Applicant and the Respondent would have had in mind when this letter reached the Applicant.  The circumstances were fully explored by the Employment Tribunal.  It noted that the letter came about following an approach from the Applicant’s trade union representative.  Agreement had been reached that the employment would terminate with a tax free payment.  On that basis the Tribunal found a consensual termination of the Applicant’s employment.  Its contextual scene included the file notes provided by the trade union and the exchange of questions and answers between the Respondent and Mr Main, together with the instructions, the authority which it had found had been given by the Applicant to the ATL.  The Applicant did not protest at the course of action set out in the letter and in fact taken. Those in our judgment are all proper matters to have been considered.  This was not a case where the Tribunal was invited to close its eyes to the background and to focus exclusively on the printed page.  Thus, what material it found of assistance must be a matter for it in its search for what reasonable people, in the circumstances of these two parties, would have understood this letter to mean.  What would otherwise appear to be a unilateral notice in its context turned out to be consensual 

19.	The Tribunal noted that the Applicant may not have understood fully the implications of what had happened but she did agree that her employment should be terminated and that was with the benefit of Mr Main’s advice.  That then is the contextual scene, as Lord Steyn put it.  In our judgment the Tribunal cannot be faulted in painting that scene for itself and for us in the way it did and in placing within that scene those documents and the evidence which it heard, in order to come to that conclusion of crucial importance in this case. The judgment of the Employment Tribunal as to the witnesses was this:

“We preferred the respondent’s witnesses evidence to that of the applicant, because the medical evidence is that to the applicant’s concentration was affected by her illness and in her evidence to the tribunal she accepted that her state of mind at the relevant time was such that she could not be sure of exactly what was said.  We therefore concluded that the applicant’s recollections of events may not be accurate.  On the other hand the respondent’s contentions were supported by the documentary evidence, including notes made on the applicant’s file held by her union representatives and in part in the document containing Mr Main’s answers to questions put to him.”

20.	The reference to Mr Main, it should be noted, is in the context that he was terminally ill and has since died.  The Tribunal agreed to the adduction of evidence from him in this form.  It should also be noted that the above reasoning corresponds with the injunction given to Employment Tribunals by the Court of Appeal in Anya v The University of Oxford [2001] ICR 847 paras 24-25 per Sedley LJ.  It did not make a blanket acceptance or rejection of one side or the other’s case on credibility grounds, but gave a helpful indicator backed cogently by the above reasoning.  Thus it accepted that this was a genuine consensual termination of the contract of employment. Ground 2 of the Notice of Appeal is therefore dismissed.  

Ground 3: authority
21.	The third ground contends that the Tribunal should not have accepted the evidence that the union had authority to negotiate on behalf of the Applicant.  The Tribunal found that Mr Main was so authorised.  We have been shown the Applicant’s second witness statement in which she said this:

“5.	The illness has meant that I have had to rely upon my friends.  In addition I asked my Trade Union to assist me by providing advice and to act as an intermediary.

6.	I have never instructed the Trade Union to negotiate the termination of my employment with the Respondent.  If ATL has negotiated on my behalf, it has done so without my knowledge or authority.  There is a copy of the Trade Union file.  I do not know Janet Joule the ATL Solicitor.  I have never heard of her or spoken to her.  I have never provided her or the Trade Union with instructions.  I have not given instructions to a third party acting as an intermediary.  My desire was to continue teaching at Elm Park School. 

7.	I was advised by a Union Representative, John Main.  I asked John Main to act for me and to give me advice.  I did not authorise John Main to negotiate the termination of my Contract with the Respondent.”

22.	Several points have been made about this statement. It is of course unimpeached by any record of cross-examination.  Without objection, Ms Omambala read to us from her notebook the Applicant’s acceptance in cross examination that her recollection was totally unclear.  A second point is made.  There is an apparent conflict between the Applicant’s approach to asking for someone to act as an intermediary.  In the light of the Tribunal’s finding that the Respondent’s evidence was to be preferred to the Applicant’s for the reasons which we cited, the Tribunal was correct when it rejected that approach and held that the Applicant did indeed give authority to Mr Main or to ATL to deal on her behalf.

23.	We conclude that the authority which was given in writing on 6 December 1998 continued throughout 1999 as illustrated by the union seeking to arrange a number of different ways of effecting severance of the relationship.  It has been submitted that the scope of the authority was constricted by the use of the word ‘all contractual discussions’.  We reject that submission: ‘all contractual discussions’ is capable of including discussions relating to the severance of the contractual relationship and his efforts, albeit ultimately rejected, to secure early ill-health retirement.

24.	We have no doubt that in the Applicant’s distressed state in 1998 she was wise to put her contractual discussions and negotiations, as we hold, in the hands of her experienced trade union officers and she did indeed have the benefit of their assistance in reaching a solution to the physical problem faced by her illness.  Thus we hold that the Tribunal correctly found that the union was acting on behalf of the Applicant.  

25.	We note that Counsel then instructed at the Tribunal hearing had prepared a list of issues with which she opened the case.  The agency point was not an issue which he presented to the Tribunal.  Ms Omambala has produced her closing submissions in writing which indicate a submission that there was no evidence of a failure to provide proper authority by the Applicant to the union.  She told us, referring to her notes, that there was no dissent by her opponent on that matter.  We would not conclude this matter on the basis of simply a concession if that is what it was.  We prefer to take the unchallenged account that Counsel did not indicate this was an issue and Ms Omambala’s submission in writing appears to have been accepted by the Tribunal.  The third ground of appeal is dismissed.

Ground 4: adequate Reasons
26.	The fourth ground of appeal relates to the now routine pleading before this Appeal Tribunal that the Employment Tribunal decision lacks sufficient reasons contrary to the judgment in Meek v The City of Birmingham District Council [1987] IRLR 250.  We have no doubt when we read these reasons as to how the Tribunal came to its principal conclusions.  We have no doubt as to the documents it saw and as to the evidence which it preferred.  Those conclusions are backed up by cogent reasoning which in turn is backed up by a clear approach to the legal provisions which it cites ie Sections 4(2)(d) and 5(1) of the DDA 1995, and its reference to the relevant authorities which we hold to be HJ Heinz Co Ltd v Kenrick [2000] IRLR 144 EAT, Jones v Post Office [2001] IRLR 384 CA, Clark v Novacold [1999] IRLR 318 CA.  There is nothing opaque or jejune about its Reasons.  This Tribunal performed its duty Meek-compliant to the full. We reject ground 4. 

Ground 5
27.	Ground 5 seems to be a rehearsal of earlier grounds.  That is to consider again whether or not in the context of this case a genuine agreement was reached for consensual termination or whether it was truly a unilateral matter.  The circumstances are set out but we have dealt with those in responding to Mr Hyams’ Ground 2.  Ground 5 is dismissed.

New Grounds
28.	During the course of his opening, Mr Hyams made two further submissions.  He sought permission to raise an issue under Section 9(2) of the DDA.  Section 9 prevents any agreement which purports to exclude or limit the operation of any provision of this part of the Act or to prevent any person from presenting a complaint to an Employment Tribunal.  Certain conditions have to be satisfied if such an agreement is to be upheld. 

29.	This point was not before the Employment Tribunal. It was raised in the Notice of Appeal upon which the EAT allowed the matter to go forward, that is, that we should consider it at our hearing.  However, Ms Omambala took the point that this was a new point and should not be allowed.  In our judgment the case does not meet the test set out in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 CA and Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 CA.  Robert Walker LJ in the latter case recognised that he was overruling the Employment Appeal Tribunal, an experienced specialist tribunal, on a procedural point; but he considered that the search for justice requires some difficult reconciliation of conflicting principles and there is a strong public interest in finality of litigation: see paragraph 29.  The rule of practice embodied in these authorities is not regarded as a matter of technicality but of justice to a Respondent who may be plunged into yet more litigation, see for instance Sir John Donaldson P. in GKN v Lloyd [1972] ICR 214, NIRC  page 219 and Arnold J in Kumchyk v Derby CC [1978] ICR 1116 EAT page 1123.  It seems to us that Robert Walker LJ was applying a rule of law that unless there are exceptional circumstances the Employment Appeal Tribunal should refuse to allow a new point to be ventilated.  Objection has been taken.  This is not simply a point of law but may well require some investigation of fact.  Even if it were a point of law, the Appeal Tribunal would be wrong to allow it now to be raised for the first time.  Experienced Counsel conducted this case below and we accept Ms Omambala’s submission that it would be an injustice now to have the point raised. 

30.	Mr Hyams sought permission to argue a further new ground raised for the first time in his skeleton argument five days ago: that the decision of the Employment Tribunal was contrary to a holding of the Employment Appeal Tribunal in Cosgrove v Ceasar & Howie [2001] IRLR 653 at paras 7 and 8.  We have not considered that case in detail.  Assuming that it does regulate the approach to the law of the Employment Tribunal, we bear in mind that in the Jones case an Applicant with whom the Court had considerable sympathy because of an acknowledged change in the law was shut out from arguing a point for the reasons given by Robert Walker LJ.  In any event Ms Omambala indicates that had this issue been raised then a different approach to the evidence and to the submissions below would have been made.  It had not been canvassed at the Preliminary Hearing nor in the Notice of Appeal. New facts would need to be examined. It is not fair to allow the Applicant to raise this new point 

Secondary findings
31.	Before leaving this matter we are asked to consider by Ms Omambala the reality of the relief sought.  Indeed, Mr Hyams is at pains to make clear that there is a real issue involved if the matter were remitted.  This is because a claim was made under Section 5(2) that the Respondent had been guilty of failing to comply with the duty to make reasonable adjustments provided under Section 6(1)(a).  The Tribunal considered that there was no duty on the Respondent to make any adjustments in the circumstances of the case which it set out in full.  That is consideration of whether or not rehabilitation or part-time work was available.  It came to the same conclusion as it did in respect of the claim under Section 5(1), viz that the reason for the Respondent’s treatment of the Applicant was not related to her disability but to the acceptance by the Respondent of what was a genuinely agreed termination of the relationship.  The Tribunal said:

“Further we are satisfied that in any circumstances where a similar situation arose with an employee who was not disabled then the outcome would have been the same.”

It further concluded that such action would have been justified.

32.	In taking a pragmatic approach urged on us by Ms Omambala, we have dealt with those secondary findings of the Tribunal which it said were simply there for the sake of completeness.  We reiterate them because we think they do show sound judgment and common sense and indicate we hope to the Applicant that her claim, even if it had passed the threshold of the first five grounds of appeal, would have failed.  It may be of little consolation to her however to hear us say what the Tribunal has already told her.  The appeal is dismissed.