Appeal No. UKEAT/0342/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 August 2005

Before
HIS HONOUR JUDGE SEROTA QC
MR I EZEKIEL
MS P TATLOW 

AGRILEK LIMITED	APPELLANT

MR B F BOUNDY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROSS CIFONELLI
(of Counsel)
Instructed by:
Eurolawline
Oakworth Hall
Oakworth
Nr Keithley BD22 7HZ	
For the Respondent	MR JOHN FALKENSTEIN
(of Counsel)
Instructed by:
Messrs Burnett 
Solicitors
6 Victoria Place
Carlisle
Cumbria CA1 1ES	

SUMMARY

Practice & Procedure: Case Management & Bias, Misconduct & Procedural Irregularity

The decisions of the Employment Tribunal to refuse an adjournment which the Respondent’s advocate withdrew was within the discretion of the Employment Tribunal and could not be faulted.

HIS HONOUR JUDGE SEROTA QC

1.	This the preliminary hearing by the Respondent employer, Agrilek Limited, from a decision of an Employment Tribunal at Carlisle, Mr H Forrest being the Chairman.  The decision was entered onto the Register on 31 December 2004.  The Employment Tribunal found that Mr Boundy, the Claimant, had been unfairly dismissed; that it would not be just and equitable to reduce his compensation or basic award on the basis of his conduct.  It also found that he was disabled within the meaning of the Disability Discrimination Act in that he suffered from clinical depression and that the Respondent had discriminated against him by failing to take reasonable steps to prevent his disability placing him at a disadvantage.  Further, he had been discriminated against by being dismissed for a reason relating to his disability.  The Employment Tribunal also came to the conclusion that he was owed some 55 days’ accrued holiday pay.

2.	There was a subsequent remedies hearing on 27 January of this year when Mr Boundy was awarded a basic award of £1,950; a compensatory award for disability discrimination of £31,120 and £4,565 for breach of contract in relation to the failure to pay him 55 days’ holiday pay at £83 per day.  We should note that subject to the appeal which are considering today, the Employment Tribunal has agreed to review that particular aspect of the case.

3.	The hearing was fixed to come on for three days starting on 8 December.  On day 1, there was a delayed start and the case began, but it began badly, so far as the Respondents were concerned: their Counsel withdrew for what he described as professional reasons, although it has to be said, so far as the Respondents are concerned, that he had no mastery of the case whatever and was struggling generally to present the Respondents’ case.  

4.	The Respondents were represented on that occasion by their commercial director, Mr Brown, and the office manager, Miss Cindy Kendall.  They were left somewhat in the lurch and did not quite know how to proceed and at the suggestion of the Chairman, they made an application for an adjournment.  The application for adjournment was opposed by the Claimant and was considered by the Employment Tribunal which, in the event, refused an adjournment largely on the basis of medical evidence from a clinical psychologist, Dr Gayle Weallens who was treating the Claimant.  Her evidence, which was accepted by the Employment Tribunal, was that an adjournment would be damaging to Mr Boundy’s health.

5.	The matter came before HHJ Reid QC on 28 February of this year and he stayed the matter while Affidavits were sought from the parties and comments from the Employment Tribunal in relation to one of the grounds of appeal.  That is that the Respondent was prevented from cross-examining Dr Weallens.  Affidavits were lodged by a Miss Kendall on behalf of the Respondent.  The Claimant took the opportunity to produce a somewhat discursive Affidavit that did not concentrate solely on the allegations as to prevention of cross-examination and notes were obtained, and comments, from the Chairman of the Tribunal.  The matter was referred to a preliminary hearing by Rimer J on 23 May 2005.  

6.	We should say something, briefly, about the factual background to this claim.  The Respondent is a medium sized engineering contractor employing between 110 and 140 employees.  It does not have any dedicated human resources or personnel staff as such.  The Claimant joined the Respondent in 1998 as a business development manager; later in 2000 he was transferred to become the manager of the steel fabrication division.  His performance failed to live up to the Respondents’ expectations.  

7.	The Employment Tribunal, and we now refer to paragraph 12.4 of its Decision, concluded that while problems that arose were addressed by directors with the Claimant on a day to day basis, as required, with a view to ensuring their resolution, there was a perceived underlying problem: - the Claimant’s lack of ability to perform at the requisite level. This was not properly addressed or identified by the Respondents.  His shortcomings were never clearly spelt out to him or addressed in any formal disciplinary context.  The company had no formal appraisal system which might have identified such issues.  It had no procedure for dealing with capability questions.  It did have a disciplinary procedure but did not follow this when dealing with the Claimant.  The Claimant was not nearly warned until too late that his job was at risk because of his shortcomings, he was not clearly told what was required of him to put matters right, he was not given an adequate opportunity to improve his performance.  For example, the directors were concerned that the division was losing money, hitting ‘a financial brick wall’, yet the Claimant was given no financial information or any targets for his division to achieve.

8.	From sometime in the year 2002, the Claimant began to suffer from what the Employment Tribunal found on the facts to be clinical depression.  The Employment Tribunal was, however, satisfied that the Respondent did not know until 15 October 2003 when, on evidence that was disputed but resolved by the Employment Tribunal, the Employment Tribunal found that the Claimant had told Mr Brown.  It is also correct to say that the Claimant’s performance was such that the Respondent, before 15 October – I think on 8 October but I may have the date wrong – had already decided that it was going to dismiss Mr Boundy.  The fact remains that although the decision had been taken, it had not been acted upon and Mr Boundy had not been informed.  Mr Boundy had continued working but there had been further problems in the fabrication division. A meeting took place on 7 November.  At the meeting he was told that he would be dismissed.

9.	He then brought his proceedings and it is right that we should note that there had been various interlocutory directions and, at a hearing that took place on 7 September, the Respondent made clear that it did not intend to call any medical evidence on the disability issue.  The Claimant intended to call Dr Weallens.  AS we have said the Employment Tribunal concluded that the dismissal was unfair:
“13.		The Tribunal had no hesitation in finding that the employer did not act reasonably in treating the Claimant perceived lack of capability as a sufficient reason for dismissing him. His failings were not clearly identified by the Respondents, or put to him clearly. It was not spelt out to him clearly what it was that he was required to do; he was given no clear targets to achieve. The Respondents failed to follow a fair procedure in their dealings with him, and did not even comply with their own inadequate disciplinary procedure.  Moreover, he was not given any opportunity to appeal the decision to dismiss him.
14.		The respondents rely on the two meetings of 6 October and 7 November as showing a fair procedure. The Tribunal reject that contention. The decision to dismiss the Claimant had already been taken by Mr Brown before the meeting of 6 October and before there had been any consultation or discussion with the Claimant.  Moreover, the Claimant was given no advanced warning of the meeting on 6 October.  He was not therefore in a position to exercise his right to be accompanied by another person at that meeting; no dear guidance or targets were set during it.  It was not confirmed in writing to the Claimant what was expected of him. 
15.		In the Tribunal's view these are not merely procedural defects, but fundamental.  If the Claimant had been given a proper opportunity to put his side of the case,   the Tribunal have no doubt that he would have raised his illness as a mitigating factor.  After all, the Tribunal have found that he did raise his illness with Mr Brown at a meeting on 15 October. A reasonable employer would then have considered and investigated whether his illness might explain or contribute to his .perceived poor performance.  A reasonable employer would have considered what action should follow as a result; and in particular what adjustments should be made to take account of the Claimant’s illness. The footnote to paragraph 23 of the ACAS Code of Practice is illuminating: When considering the reasons for absence or substandard performance employers should bear in mind the provisions of the Disability Discrimination Act 1995. In particular employers should note the obligations placed on them by the Act to make reasonable adjustments when dealing with sickness related absences”.

The Employment Tribunal was satisfied that it would not be right to reduce the award in any way by reason of any conduct on the part of Mr Boundy because there had been no misconduct.  

10.	So far as the issue of disability is concerned, the Employment Tribunal accepted Dr Weallens’ evidence that Mr Boundy suffered from clinical depression.  The Employment Tribunal at paragraphs 19 and 20 found a number of reasonable adjustments that could have been made to enable Mr Boundy to carry out his employment.  We have already referred to the fact that the Employment Tribunal found that before the dismissal took place on 7 November, Mr Boundy had told Mr Brown about his depression.  The Employment Tribunal, at paragraph 20, found this to be the case but it rejected submissions made by Mr Falkenstein on behalf of the Claimant that the Respondent should have inferred from earlier information that the Claimant was, in fact, disabled.  

11.	The Employment Tribunal then found that in the light of the knowledge of Mr Boundy’s condition, the Respondent had sufficient knowledge and the duty to make adjustments under the Act arose, even if the full impact of the disability was not known.  The Employment Tribunal, as it seems to us, correctly directed itself as to the law in this matter and we draw attention to the way in which it dealt with the issue of disability discrimination at paragraphs 8 to 11 of the judgment.  The Employment Tribunal then went on to hold that the dismissal was for a reason that related to disability, the disability had a significant substantial impact on Mr Boundy’s ability to do his job properly.  

12.	Now, the Employment Tribunal had before it an application to adjourn in the circumstances that we have mentioned.  The Employment Tribunal dealt with this matter in some detail in paragraph 3 of its Decision.  
“3.		In considering the application to adjourn the Tribunal considered their overriding objective and the Justice of the case.  In other circumstances, the Tribunal would have agreed to the adjournment, probably with a costs order in favour of the Claimant.  Although saving costs and expedition favoured pressing ahead, ensuring parties were on an equal footing and the complexity of the issues favoured an adjournment.  However in the particular circumstances of this case the Tribunal declined to grant the adjournment.  The key feature which tipped the balance in your of the Claimant on this point was evidence from his clinical psychologist, Dr Weallens.  The Tribunal find that effective treatment of the Claimant's clinical depression and any prospect of recovery for him will be substantially delayed while the issues relating to the loss of his job and these Tribunal proceedings remain' unresolved. He is not able to commence the necessary therapeutic work until he can put the past issues behind him, and move on, whatever our judgment. Any delay in reaching our judgment is likely therefore to prolong his illness, which is having a serious and debilitating affect on him.  In the light of that evidence of actual personal injury resulting or continuing to the Claimant from an adjournment, which could not be compensated for by costs, the Tribunal refused the adjournment”.

13.	We also note that the Tribunal did adjourn the hearing for the remainder of the first day to give the Respondents some time to present the case themselves and thereafter, as one would expect of an Employment Tribunal, it took such steps as it could to mitigate any resulting disadvantages to the Respondents from their lack of legal representation.  Thus, the Tribunal questioned the Claimant and his witnesses rather more closely and vigorously than they would have done in circumstances where the Respondent had been legally represented.  They also allowed the Respondents considerable flexibility in presenting their case which the Employment Tribunal characterised as having been put ably by Mr Brown and Mrs Kendall.  They acted jointly, each being given the opportunity to question the Claimant and his witnesses as they saw fit and to address the Tribunal.  

14.	There was evidence, as we have said, given by Dr Weallens and we have already referred to what that evidence was.  One of the grounds of appeal is that the Respondents were not given the opportunity to cross-examine Dr Weallens.  This, indeed, is said by Mrs Kendall in her Affidavit.  She said at paragraph 13:
“Myself and Alan Brown were not offered the chance to cross-examine Dr Gayle Weallens on the evidence she gave.  We had no opportunity to question Dr Gayle Weallens about the possibility that Mr Boundy’s symptoms related to anything other than her assessment.  Dr Gayle Weallens’ opinion seemed to have been believed and relied on out of hand”.  
There is also reference to an occasion when it is said that the Chairman said that there was little point in referring to a law book as Mr Brown would probably not understand it.  

15.	We have the benefit of an Affidavit from the Claimant.  The Claimant says that the Respondents were offered the opportunity to cross-examine.  The Chairman, in his note, says in terms that they were offered the opportunity to questions Dr Weallens.  His recollection was that they offered Mr Brown and Mrs Kendall the opportunity, but they did not take it.  This is supported by his note of evidence which records at that point:
“Questions: None from the Respondent”.
So far as the allegation of perhaps being patronising to Mr Brown is concerned, that Chairman says that if he did patronise Mr Brown, he regrets doing so.  He has no recollection of it and it would not have been in his normal practice.  He said that he did take time to explain legal points and check if they were understood.  He does recall an incident when Mr Falkenstein had raised a point in his submissions and the Chairman said he discouraged Mr Brown from replying to the particular point, not because he felt he could not follow it, but because it was a bad point and he did not consider that the Tribunal needed to hear argument upon it. 

16.	The grounds of appeal are firstly that the Employment Tribunal was wrong in refusing to adjourn the hearing.  It was said that this was a breach of the overriding objective, Dr Weallens was allowed to usurp functions of the Employment Tribunal, the Employment Tribunal placed undue weight on her evidence.  This is of some significance, says Mr Cifonelli who appears on behalf of the Respondents, because at the subsequent remedies hearing, her evidence was not accepted in totality.  She had suggested that, in her clinical opinion, there was a 80% chance that the Claimant might have been able to continue working whereas the Employment Tribunal rejected that and, we believe, concluded that there was only a 20% chance, but the Employment Tribunal had other evidence before it. It is also said that the Employment Tribunal failed to permit cross-examination of Dr Weallens and that it was perverse to refuse an adjournment.  Mr Cifonelli submitted to us that the case was unlikely to have finished in any event, the first half-day having been lost, so there would be no prejudice caused by an adjournment; indeed, the case could not be completed within the three days.  

17.	So far as this ground of appeal is concerned, it is also right to say that Mr Cifonelli does not seek to dispute what the Chairman says, but says that his clients were lay persons and perhaps did not understand when they were told that they had the opportunity to ask questions.  So far as the adjournment is concerned, it seems to us that the adjournment is essentially a matter for the exercise of the discretion of the Employment Tribunal.  The Employment Tribunal did not misdirect itself, it took all the relevant circumstances into account; it was certainly entitled to have regard to the evidence of Dr Weallens and it seems to us that it is impossible to say that the way in which the discretion was exercised was in any way flawed.  The Employment Tribunal clearly have to have regard to the overriding objective, but the overriding objective requires fairness to everybody and one of the matters that it needed to consider and, indeed, which it found to be of significance, was Dr Weallens’ evidence as to the effect of any adjournment on the Claimant’s health.  We do not, in any way, believe that it could be fairly said that that finding was tantamount to a finding that any act of the Respondent had been responsible in the first place for the Claimant suffering his depressive illness.

18.	So far as the absence of cross-examination was concerned, albeit there may no longer be much in controversy, the burden lies on the Respondents to prove that they were somehow inhibited inappropriately from cross-examining and it seems to us that it is impossible for the Respondents to prove this having regard to the Chairman’s evidence supported by one of his lay members and his own note.  The point has no substance and it seems to us to characterise the decision to refuse an adjournment as perverse is on the material before us quite impossible.  The threshold, which is high in any event, is way beyond the facts in this case.  

19.	It is then said that it was a perverse decision for the Employment Tribunal to conclude that the Claimant was dismissed for reasons of disability because the decision, as the Employment Tribunal found to dismiss him, was taken on 6 October before they knew of his disability which was on 15 October.  The short answer to that is that whenever the decision may have been taken, it was not put into effect or notified to the Claimant until a date several weeks after his disability was known, on the findings of the Employment Tribunal.  The date of dismissal was not 6 October, it was 7 November and there was accordingly ample time for the Respondents to consider whether in fact they were going to put their decision into effect and as to whether or not it was appropriate for them, before dismissing, to make appropriate adjustments.  

20.	The final point of appeal relates to the issue as to the number of days holiday pay to which the Claimant should be entitled.  His evidence was that he had been paid 30 days, yet he was awarded 55 days.  We had hoped that it might be possible for this point to be agreed, but Mr Falkenstein tells us that, in fact, there was an agreement that he should be paid compensation for 55 days.  This is something which Mr Cifonelli says is not the case.  The Employment Tribunal has said that it will review this aspect of the case but it was adjourning it until after the result of this appeal was known.

21.	In our opinion, none of the points raised by the Respondents, apart from the issue relating to holiday pay, raised any points of law giving this appeal a reasonable chance of success.  In those circumstances, we will dismiss the appeal for the reasons we have given.  However, we will stay that part of the appeal that relates to the holiday pay which can be restored by the Respondent on notice after the decision of the Employment Tribunal on the review is known.  

22.	We would like to express our thanks to Mr Cifonelli for his helpful submissions and his Skeleton Argument and also to Mr Falkenstein.  Thank you very much indeed.  

23.	In order to assist the parties, rather than order that the matter should go, if it could not be agreed to an assessment, we think that doing the best we can, we will assess the amount of costs.  In doing the best we can we do this solely with a view to assisting the parties and saving costs; and having regard to what we think an appropriate amount of costs would be.  We have been told that the costs are £2,000 but we have seen nothing to support this.  The costs, in our opinion, must reflect the fact that only the most limited amount required to be done and we think that justice will be done if we make an Order in the sum of £1,250.