Appeal No. EAT/1433/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 May 2002

Before
MR RECORDER LANGSTAFF QC
MR D CHADWICK
MS J DRAKE

MR S P TOON	APPELLANT

EAST MIDLANDS AMBULANCE SERVICE	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR S J HOYLE
(Representative)	

MR RECORDER LANGSTAFF QC:-

1.	This is a preliminary hearing in an appeal against an Employment Tribunal sitting at Nottingham.  In extended reasons promulgated on 17 September 2001, the Employment Tribunal rejected the complaints made to it that the employee, Mr Toon, had been unfairly dismissed, that he had been discriminated against on the grounds of disability.  Subsequently, in extended reasons, given after a review on 8 April 2002, the Tribunal has maintained its earlier view.

2.	Before us today, Mr Toon has been represented by Mr Hoyle, as he was before internal proceedings.  We should say at the outset of this decision that we are very grateful to Mr Hoyle, who we think could not have advanced the argument which he had to make more effectively had he been qualified, which he is not but on his way to being, and we think that the quality of his submissions augers well for his career.  That said, he had an enormous task because he was seeking to persuade us that the decision of the Employment Tribunal should be overturned on the ground that it was perverse.  That is an enormous hurdle because he had to satisfy us that the decision was wholly impermissible.  There are various phrases collected in cases such as Piggott v Jackson which emphasise the difficulty that any appellant has in attempting such a task.

3	To understand the arguments in this case it is necessary to have regard to a little bit of the history.  Mr Toon was employed as a paramedic.  He was disciplined on 3 June 1999 in respect of complaints that had been made about his conduct.  There were a number of allegations.  The first allegation related to conduct towards nursing staff at a nursing home.  There was added to that an allegation that he failed to make patient care his priority.  It was alleged on 21 April 1999, thirdly, that he was impatient, rude and unprofessional in dealings with nurses at a community hospital.  Further, that on 23 April having started to remove a bandage from a patient and been asked not to do so by the nursing home Matron due to distress being caused to the patient, he proceeded to remove the bandage as soon as the patient was inside the ambulance.

4.	The disciplinary hearing was told that the appellant felt under pressure as a paramedic, that he was taking medication, that that medication might be causing mood swings and that as a result he was attending counselling sessions and taking antidepressants.  Nonetheless it decided that the appropriate way of dealing with Mr Toon, in the circumstances, was to dismiss him.

5.	He appealed.  That appeal was heard on 9 July 1999.  It confirmed the decision of the earlier disciplinary hearing.  In a letter written confirming that decision the panel said at (d):-

“The Panel have noted the time which elapsed between the issuing of a written warning in September 1998, because of problems relating to attitude, and you commencing to take medication in December 1998.  The Panel feel that no evidence was provided to the Disciplinary Hearing about your medical condition or the alleged side effects of the prescribed medication and that the onus of responsibility was on you to make the Trust aware of the implications.”

By the time the matter came before the Employment Tribunal it was established on medical evidence, which had not been before the employer, that Mr Toon had suffered from an acute stress reaction leading to depression which had probably been caused by his taking a drug to counteract his dermatitis, a drug called Roaccutane.

6.	There are three attacks made upon the way in which the Tribunal expressed its reasons.  It needs to be said in evaluating these that the reasons cover some 16 pages and relate to evidence which was heard over no less than 6 days.  It was plainly a substantial case.  The first point taken by Mr Hoyle was that the Tribunal nowhere deal with the evidence of a number of witnesses called on behalf of Mr Toon.  Their names are set out in paragraph 3 of the extended reasons.  Their evidence is simply not referred to.  They did say that, in their view, Mr Toon was so seriously affected by depression as to appear to them to be suicidal.  He suggests that had this evidence been taken on board by the Tribunal they would have realised that it was available to the employers when they came to discipline Mr Toon and that once the question of his mental state had been raised it was incumbent upon the employer to investigate it properly.  A reasonable investigation is part and parcel of the requirements of Burchell v British Home Stores and had that investigation been conducted they would have discovered from each of these individuals, if not from others, that it was their view that Mr Toon was so seriously mentally affected as to be suicidal.

7.	We do not see, in that alone, a sufficient reason for concluding that the decision reached by the Tribunal was here perverse.  The decision was to the effect that the dismissal ultimately reached was fair.  In reaching that conclusion the Tribunal dealt, first of all, with the submissions of the parties, and then, in a number of sections in the decision, with criticisms which had been made of the disciplinary hearing, the appeal hearing and the facts of the complaints made to those hearings.  It then concluded that taking everything into account, the dismissal was, in its view, within the band of reasonable responses (a test established by modern and familiar authority).  We do not think that it detracts from the validity of a decision of an Employment Tribunal that it makes no particular mention of the evidence of a particular witness.  It is often a matter of surprise to parties that a Tribunal does omit such a reference.  However, Tribunals have to be allowed sufficient latitude to reflect the generality of the evidence which they hear.  It is incumbent upon a Tribunal to explain why it is that parties win, why it is that they lose and not to dot every “i” nor to cross every “t” nor to set out in detail what they accept of that witness’s evidence, and what they reject, so long as their principal conclusions are spelt out sufficiently to deal with the main task before them.  It is for those reasons that we do not think in this first ground that there is sufficient to say that this decision is perverse.

8.	The second ground depends upon what one makes of the wording of the Tribunal’s decision itself.  At paragraph 13 the Tribunal in dealing with the disciplinary panel say this:-

“No evidence of the side effects of Roaccutane was presented.”

If one takes that sentence in isolation and at face value, it is certainly wrong or at least misleading.  This is because, as Mr Hoyle has pointed out to us, there are a number of findings of fact by the Tribunal which show that the panel did indeed have brought to its notice the fact that Mr Toon had been suffering from illness and that it was alleged that that illness was in consequence of the side effects of Roaccutane.  In particular, he has directed our attention to paragraph 4 (o) in which it is recorded by the Tribunal that at the first hearing the representative for Mr Toon had stated that he was taking a drug called Roaccutane and that the side effects of that were mood swings and mood changes, that he was taking anti-depressants and was seeing a counsellor.  He has added to that what is noted at paragraph 4 (q) when at the appeal hearing a different representative for Mr Toon had explained that the applicant was taking Roaccutane and referred to its side effects of mood swings and depression.  He has told us a matter which is not recorded in the decision but which for the purposes of these submissions we accept as having happened, which is that Mr Hinchley has accepted that he was shown an entry in the British National Formulary which referred to the known side effects of Roaccutane as including mood swings and depression.  On that basis, he submits, that there was no evidential basis for the Tribunal reaching a conclusion which taken at face value appears to contradict the earlier findings. 

9.	We have to remind ourselves that it is sometimes dangerous to take individual sentences from a Tribunal’s decision in isolation.  They have to be read in context.  That context is both the paragraph in which the words occur and also the general context provided by the rest of the decision.  As to the latter first.  The Tribunal noted with no adverse comment at paragraph 4 (r) the letter by which Mr Handy, on behalf of the appeal panel, had confirmed the grounds of dismissal.  At (d) that letter recorded the panel’s feeling that “no evidence was provided to the Disciplinary Hearing about your medical condition or the alleged side effects of the prescribed medication and that the onus of responsibility was on you to make the Trust aware of the implications.”

It is plain that that document indicates that the issue of side effects had been raised, but what was being referred to was not the suggestion that the behaviour of Mr Toon might be due to the drugs but the absence of responsible medical opinion which would actually link the known side effects of Roaccutane, in some circumstances and in some individuals, to this individual in these circumstances in respect of this conduct.  

10.	When we look to the local context in the paragraph within which the words occur in the Tribunal decision we see a similar approach.  The words come after a conclusion that the panel could not reasonably conclude that there was any reason why the medication contributed to the material incidents.  It notes that on an earlier occasion in which Mr Toon had been warned in respect of his conduct, the timing was such that it had occurred before he had ever started to take Roaccutane.  It goes on, after the words to which exception is taken, to refer to there being no reason why the applicant could not have presented medical evidence or a report from his counsellor noting that it was clear that the respondent would have adjourned to allow that evidence to be obtained.  It is plain to us, therefore, that the only sensible meaning to be given to the words “no evidence of the side effects of Roaccutane was presented” was to refer to evidence that related the conduct of Mr Toon in the particular aspects complained of to the known side effects of Roaccutane.  It was not the Tribunal falling into error in refusing to accept that which it had earlier found that there was no material about the effects of Roaccutane in general terms.  We have carefully considered whether our decision in this respect is at least arguable so as to permit the appeal to go forward.  We do not think, taking it fairly, that it is.  Accordingly, we have to reject this second ground also as entitling us to think that there might be an arguable case that this decision was invalid for perversity.

11.	A third basis was then advanced which Mr Hoyle referred to as his strongest basis and we think rightly did so.  It was this.  He drew attention to the fact that when Mr Toon was first engaged by the employer, he had an appointment with the Occupational Health Department.  He had to be certified fit by medical examination, both for his employer’s protection and those of his fellow employees and the patients with whom he would deal.  That was due to be reviewed at five yearly intervals.  When the fifth anniversary fell, as it happened, he was not present at work but that would have been no reason why there could not have been a second medical.  If it had occurred it would have occurred on 17 May 1999 and Mr Hoyle has asked us to infer that there would have been a report produced demonstrating that Mr Toon was unfit for service and as part of reaching that conclusion would have explained why.  It would have recorded the fact that he had been taking Roaccutane which had recently been stopped because, according to the hospital, it had been causing him side effects of mood and depression.  It would therefore have demonstrated or if not at least have supported an argument that the necessary link between Roaccutane and Mr Toon’s behaviour should be drawn.  It was incumbent upon the employer, says Mr Hoyle, to have had this medical examination.  Accordingly it was part of the reasonable investigations that any view of the dismissal of Mr Toon should have encompassed.  

12.	When the Tribunal looked at the issue of the disciplinary hearing, he submits in effect it applied the well known test from British Home Stores v Burchell, that is, did the employer have an honest belief in the guilt of the employee?  Was that based on reasonable grounds following thirdly and most importantly in this context, a reasonable investigation?  The Tribunal said that the dismissing panel and the employer did not know and, in their view, could not reasonably be expected to have known, that Mr Toon suffered an acute stress reaction leading to depression between August and December 1998 and a recurrence of depression between late 1998 and June 1999, probably caused by Roaccutane.  He submits that that finding by the Tribunal formed part of the reasoning of the Tribunal and that they took that into account in evaluating the response of the employer to the dismissal of Mr Toon.  He submits that this is too narrow a focus, that rather than look just at those involved in the disciplinary process, the Tribunal should have had a wider regard to that which the employer as a whole should have known, and in the circumstances which he has described to us would have known, about the illness from which Mr Toon suffered.  

13.	We have to ask whether that approach would entitle us to think that the decision of this Tribunal was arguably perverse.  We have some sympathy with it but we cannot, in the event, accept that it entitles any Tribunal sitting on appeal to regard the decision of this Employment Tribunal as perverse.  Our reasons are these.  First the Tribunal deals with the question of fairness or unfairness in two short paragraphs at 22 and 23 having set out a considerable quantity of factual material beforehand.  They have said that they regarded the decision to dismiss as within the range of reasonable responses.  They add at paragraph 23 that they decided that the respondent had an honest belief, based on reasonable grounds, and formed after a careful investigation that the applicant was guilty of misconduct.  That is to describe the investigation generally.  As to the particular point, that is that the employer should have been aware in the process of the disciplinary hearings that Mr Toon was ill and that that illness had been causally related to the activities which were the subject of complaint, we cannot overlook the comments made by the Tribunal in both paragraphs 13, in the second last sentence and paragraph 15 in the fifth sentence, to the effect that the conduct of the disciplinary process was such that it was clear that the respondent would have adjourned either or both hearings to allow medical evidence to be obtained had it been asked for, and that they would have facilitated any request for witnesses who had not attended to have come.  They were bound to take the view that here the employer was dealing with suggestions made by Mr Toon that he had not committed the conduct which was alleged against him.  For various reasons he disputed the accuracy of the facts.  His primary case was not that he had been so ill that he could not recall whether he had committed the acts in question, or failed to appreciate their nature and quality.  He was represented.  It is of note that the representatives, it would appear, never on his behalf asked for the adjournment which the Tribunal concluded would have been granted.  The focus of section 98(4) is not upon the general justice of a dismissal in the light of events which are known after it has occurred.  What has to be evaluated by a Tribunal is whether at the time, the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for that dismissal, due regard being paid to equity and the substantial merits of the case.  The focus is thus on the employer’s reasoning.  It is easy perhaps from sympathy with Mr Toon in the difficult medical state in which he was, and is, to lose sight of the fact that here the employer had a factual conflict before it and had no clear evidence to link the behaviour of which the complaint was made in this particular case in this particular person to the particular side effects to which Roaccutane could give rise.

14.	We have to remember it is not for this Tribunal whether on a preliminary hearing or on a full appeal to substitute its own evaluation of the witnesses.  It is one of the great advantages that a Tribunal has that it sees and hears witnesses and can understand nuances which very often do not find their way into print.  It is perhaps for that reason that the standard of perversity is set as high as it is.  Having regard to that standard, having regard to the evident care with which in general terms, despite the inevitable criticisms that may be made, this Tribunal approached its task, and having regard to the substance that which they had to consider, we cannot see that there is here any arguable case that this Tribunal was perverse.  It is not sufficient merely for us to think, perhaps with the advantage of Mr Hoyle’s submissions, that another Tribunal might have concluded differently, the question is, was this Tribunal entitled to come to the conclusion to which it came and the answer, we think, can only be, yes.  For that reason, again with our gratitude to Mr Hoyle, this appeal must be dismissed.