Appeal No. UKEAT/0038/07/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 4 April 2008

Before
THE HONOURABLE LADY SMITH
MR J KEENAN MCIPD
MR R THOMSON

MR R A CARPENTER	APPELLANT

CITY OF EDINBURGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Mr D Loughney
(Representative)
Edinburgh Trades Union Council
Mansfield Traquair Centre
15 Mansfield Place
Edinburgh
EH3 6BB	
For the Respondents	Mr R Pilkington
(Advocate) 
Instructed by:
City of Edinburgh Council  Corporate Services Legal Division
City Chambers
High Street
Edinburgh
EH1 1YJ	

SUMMARY

Practice and Procedure – Delay in ET Judgment

Delay. Over three years between last date of hearing (which had taken place over 2½ years) and issuing of judgment by Tribunal.  Whether real risk that claimant had, as a result, been denied his Article 6 right to a fair trial.  Circumstances in which the Employment Appeal Tribunal held that such a risk did exist.  

THE HONOURABLE LADY SMITH

Introduction
1.	The sole ground of appeal in this case is delay.  It is an extreme case.  The originating application was lodged on 23 February 2001, the hearing took place before an Employment Tribunal sitting in Glasgow, Chairman Dr R Jandoo, over 24 days between 28 November 2001 and 12 March 2004, and the judgment was issued and registered over three years later, on 5 April 2007. 

2.	Somewhat surprisingly, the judgment contains no hint of any explanation for the delay.  When the appeal was at rule 3 stage, a reference back was made enquiring as to the reason for and circumstances surrounding the delay.  The Chairman responded in a note dated 18 June 2007 which was in the following terms:
“(a) The Tribunal deliberated on its decision on the last day of the hearing.
(b) The judgment and reasons were formulated in draft form over a period of time and finalised when submitted for promulgation.
(c) The reason for the delay arises from the fact that [a] the chairman was under prosecution for offences relating to the Civil Aviation Act and breach of the peace.  There were considerable delays in the trial date being fixed arising from, among other things, the chairman being medically unfit.  The chairman was medically unfit for a considerable time over the relevant period which also prevented him from undertaking work.  The chairman was under medical supervision until December 2006; [b] pending prosecution and the determination by the Sheriff Court, the chairman was suspended from the Scottish Bar, under strict instructions from the Dean of Faculty of Advocates, that he could not at any time under any circumstances hold himself out as an ‘advocate’ until his suspension was terminated.  The Chairman believed that promulgation of a judgment required the Chairman to both identify his status as an ‘advocate’ in the judgment and that he had to be able to practice as an advocate.  Suspension was terminated on 1st January 2007.” 

3.	No explanation for the delay between January and April 2007 was given.  In the absence of any reference to his having done so, we assume that the Chairman did not send his judgment to the lay members in draft for their comments before issuing it, a course which would have been prudent in a case where there had been such a long delay between the members’ meeting and the writing up of their findings, reasons and decision. 

4.	This is an appeal at the instance of the claimant who was unsuccessful in his claims of disability discrimination and unfair dismissal.  Before the Tribunal and before us, the claimant was represented by Mr Des Loughney of Edinburgh TUC and the respondents were represented by Mr Pilkington, advocate.  We propose to continue to refer to parties as claimant and respondents.

Background
5.	The claimant suffers from cerebral palsy.  He has spasticity in all limbs, dexterity problems, problems with articulation and difficulties with concentration. Accordingly, his mobility is impaired, tasks requiring dexterity are difficult for him and he has difficulty in communicating to the extent that he was assisted by an interpreter at the hearing before the Tribunal and gave his evidence in chief by means of a written statement. 

6.	The claimant entered the employment of the respondents on 1 December 1992 as a relief housing caretaker.  He was assessed by the respondents’ Placement, Assessment, Counselling Team (PACT). They found that he was only able to undertake not more than 25% of the full requirements of the post and even with adaptations would be unlikely to exceed 30%. 

7.	The respondents medically retired the claimant on 2 August 1994 on the grounds that he was not able fully to carry out the duties of the job of relief caretaker.  He appealed.  The decision of the respondents’ Appeal Committee was:
“Having heard all the evidence the Committee expressed their extreme displeasure and concern at the way the recruitment and selection procedures had been handled by the Department of Housing.  In particular the Committee were disturbed that en employee was being given a contract of employment prior to his evident needs being assessed.  The Committee’s decision is that Mr Carpenter be reinstated immediately to a post suitable for his capabilities as stated in the medical adviser’s report of 17 January 1994.  The Committee further stated that if no such suitable post was available Mr Carpenter was to be retained in employment by the housing department on a supernumerary basis.” 

8.	The claimant was thereafter given a role as an Auxiliary Caretaker in a supernumerary position.  It involved him working at the respondents’ offices, at housing blocks at Gracemount and Moredun and at the Captain’s Road car park.  He was dismissed on 31 October 2000 on ‘ill health’ grounds, those grounds not being a question of the claimant having contracted any new condition.  The problem was the same restriction in his abilities that had been present from the beginning of his employment with the respondents.  The view was, however, taken that the claimant’s abilities did not match those required by his role.  That view was expressed by an occupational health consultant, Dr Fletcher, to whom the respondents had referred the claimant. 

9.	Dr Fletcher’s assessment was intimated to the respondents and on 27 September 1999 the respondents wrote to the claimant advising him that they considered they had only two options; medical retirement or redeployment.  The latter was being considered on the basis that the respondents’ normal procedures would apply, namely that re-deployment could only be made available if there was a vacant funded post.  It was not on the basis that they would be looking at redeployment to a supernumerary post.  The respondents did not identify a suitable vacant funded post and the claimant’s dismissal ensued.  

10.	The claimant had, prior to his dismissal, lodged a grievance complaining that he had been treated in a manner which amounted to discrimination on grounds of his disability.  His grievance had not been upheld.  The events complained of in his grievance were referred to in his claim to the Tribunal in the context of a claim for pre dismissal disability discrimination.  He also claimed that he had been unfairly dismissed and that his dismissal amounted to discrimination on grounds of disability.  His case was that the respondents had dismissed him because of his disability and had done so without making reasonable adjustments.  They should have considered redeploying him to a supernumerary post.  That was only reasonable in all the circumstances. 
The Tribunal’s Judgment
11.	We have already noted the delay in and circumstances surrounding the promulgation of this judgment. 

12.	The claimant did not succeed.  His claims of pre dismissal discrimination were rejected on the basis that he was not believed.  His unfair dismissal claim was rejected in all respects, including his case that, due to a failure in reasonable adjustments, it amounted to disability discrimination.

13.	The events giving rise to the pre dismissal discrimination claim took place very many years ago.  The most recent of them was about ten years ago.  Mr Loughney very properly accepted that it would now just not be realistic to revisit that evidence and made it clear that in the event of the appeal being successful, he would not be looking for a remit in respect of that part of the case.  There was, however, an aspect of the evidence relating to the pre dismissal discrimination part of the claim that was relied on by Mr Loughney as being indicative of delay having given rise to deficiency in the Tribunal’s reasoning.  It related to an allegation by the claimant that he had been hit by another employee, Mr Kane. The Tribunal had preferred Mr Kane’s evidence which appears to have been to the effect that the claimant had spat at him on 17 July 1998 in public when a taxi had arrived to collect a colleague, and he had put his hand up to protect his face from the spittle at which point his arm made contact with the claimant (paragraph 20).  The Tribunal accepted Mr Kane’s evidence that the claimant had spat at him deliberately and he raised his arm thereafter. Whilst they record the claimant’s evidence as having been, on the contrary, that he spat only after Mr Kane had hit him on the head (paragraph 60), they do not record evidence which Mr Loughney advised us was given by another witness to the effect that if the claimant was upset and trying to articulate something, given his disabilities, saliva could be expelled from his mouth, the context of that evidence apparently being a case being advanced on behalf of the claimant that any spitting that occurred was not deliberate.  The Tribunal does not indicate whether, in reaching their conclusion, they recalled and took account of that evidence and if they did, how and why, notwithstanding it, they reached the conclusion that they did. 

14.	We turn to the matter of redeployment, it being at the heart of the claimant’s case on appeal.  At paragraph 64, the Tribunal states:
“In respect of the disability discrimination claim for re-deployment it was argued on behalf of the claimant that on consideration of all the evidence heard by the Tribunal this head of claim of (sic) could not be sustained.” 

15.	The same message is contained in paragraph 93:
“In relation to the issue of redeployment, the claimant no longer insisted on this head of claim on the basis that it was not justified on the evidence.  The tribunal considered the evidence in relation to redeployment and concluded that this head of claim was unsustainable on the basis that there were no suitable posts available for the claimant.”

Paragraph 93 contains the only reasoning advanced by the Tribunal for the rejection of the redeployment case. 

16.	These two passages are difficult if not impossible to reconcile with what is recorded at paragraph 67:
“Mr Loughney submitted that the respondents’ policy at the time of dismissal was represented by the decision of the Appeal Committee of 1994.  He said that the respondents had taken on the unusual obligation of giving someone a post that would suit their capabilities.  He submitted the very act of dismissal meant there was a ceasing and formal reversal of the obligation of the respondents that they had freely taken on.  As the obligation was not honoured, the dismissal was unfair submitted Mr Loughney.  Mr Loughney further submitted that the failure to take reasonable action in respect of re-deployment rendered the dismissal unfair.  Mr Loughney concluded that the claimant was inviting the Tribunal to make a finding that he was unfairly dismissed and that he was discriminated against on the ground of disability.” 

17.	An issue arose as to whether or not supported employment was an option for the claimant.  The Tribunal states, at paragraph 49, that Dr Fletcher was of the view that it was not.  However, the position had been that Dr Fletcher referred that question to the respondents’ Ms Adair for her to consider it in conjunction with the respondents’ special needs team.  At paragraph 41, the Tribunal found that Ms Adair concluded supported employment was not a viable option.  On their findings, that appears to have been on the basis that no supported post grant was available for the claimant to carry out a caretaking role.  

The Appeal
18.	For the claimant, Mr Loughney submitted that the claimant’s case gave rise to an important modern social policy issue and that it had lain at the heart of his claim.  It was the issue of whether a large public sector employee who takes on an employee with known significant disabilities and limitations can fairly dismiss that person on the grounds of those disabilities which were known about at the start of the employment?  The claimant was, in these circumstances, expecting and was entitled to see a judgment which recognised that that was the central issue and gave a reasoned decision bearing in mind that important issue of social policy.  The central issue had, however, been lost sight of and the only apparent explanation for that was the delay. 

19.	Mr Loughney recognised that delay of itself did not afford the claimant entitlement to a successful appeal.  Under reference to the case of Bangs v Connex South Eastern Ltd [2005] IRLR 389-398, he accepted that he required to demonstrate that there was a real risk that the claimant had, on account of the delay, been denied or deprived of his Article 6 right to a fair trial so that it would be unfair or unjust to allow the decision to stand. 

20.	The test was, he submitted, met in this case.  Firstly, the delay made it very difficult for the claimant to consider whether or not he had reasonable grounds of appeal.  There was no record of the evidence.  Mr Loughney had not been supported by anyone who was able to take notes.  The claimant could not himself take notes of the evidence.  The lapse of time made it difficult to analyse the decision and draft grounds of appeal demonstrating that the evidence did not justify the conclusions.  

21.	The reasons for the Tribunal’s decision were all important.  He submitted that a Tribunal’s reasoning would be bound to become increasingly unreliable if written over a period of time.   Recollection would dim and notes would be bound to have become more and more difficult to interpret as time went on. 

22.	Mr Loughney submitted that a delay of the magnitude in this case was unprecedented. The delay in Bangs was said to have been over a year.  In the case of Olwa v North Glasgow University Hospitals NHS Trust EATS/0067/02, a delay of less than a year was described as ‘grave’ and as being an ‘inordinate delay’ which could not be condoned.  This case was in a different category.  A line had been crossed. 

23.	Mr Loughney submitted that delay had led to the Tribunal misstating the position as regards the claimant’s redeployment case.  He had not said to the Tribunal that it could not be sustained.   Indeed, it had been the central feature in the case of unfair dismissal and disability discrimination surrounding it.  Further, the Tribunal had wrongly recorded that Dr Fletcher was of the opinion that supported employment was not an option.  That matter had been referred to Ms Adair to consider in conjunction with the special needs team and there had been evidence, not recorded by the Tribunal, that that assessment had been carried out by telephone.  The claimant’s case was that that was an unprofessional manner in which to carry out that assessment.  That case was not mentioned by the Tribunal.  Further, the Tribunal had failed to note that Dr Fletcher had been expecting the supported employment assessment not to be confined to looking at the possibility of a caretaking role.   

24.	As regards further procedure, Mr Loughney submitted that the appeal should be allowed, the Tribunal’s judgment set aside and the issues of whether or not the claimant’s dismissal was fair and whether or not there was disability discrimination at the time of the dismissal in that the respondents failed to make reasonable adjustments by considering redeployment of the claimant in a supernumerary post, be remitted to the Tribunal.   

25.	For the respondents Mr Pilkington submitted that the Bangs test was not satisfied.  Whilst there had been delay, that was not of itself enough.  There were no material omissions from the judgment.  It was long and detailed.  The tribunal had discharged its duty.  It had come to a view as to where the truth lay.  Redeployment had been considered.  There was no confusion as to the claimant’s position in that respect.  Paragraph 93 was sufficient.  The Tribunal’s conclusion was clear.  There was no point in looking at redeployment because the claimant wanted to return to work at Moredun House and that was not feasible.  The respondents were not obliged to create a supernumerary post.   

Discussion and Decision 
26.	The delay in the Tribunal’s promulgation of its decision in this case was of extraordinary length and the need to ask whether, in all the circumstances, there is a real risk that that delay has had the effect of, in substance, denying the claimant his Article 6 right to a fair trial is obvious.  We are satisfied that that test, which was formulated by the Court of Appeal in the case of Bangs, is the appropriate one.  Delay of itself raises no question of law.  The only relevant question of law is whether or not the party appealing could have been denied his right to a fair trial, to which he is, as a matter of law, entitled.   

27.	The delay in this case should never have occurred.  Employment Tribunals should and usually do pride themselves in affording efficient and expeditious disposal of the claims that are brought before them.  Decision without delay is an aspect of the overriding objective of deciding cases justly and it is normal to see that being achieved even in complex cases.  A delay such as in the present case is a serious blot on the administration’s landscape.  It is certainly grave and worthy of censure.  However, we are equally aware that such feelings of disquiet and disapproval do not of themselves show that there is a real risk that there has not been a fair trial.  We require to look at matters in some more detail than that.   

28.	The judgment runs to some 43 pages and 101 paragraphs.  We accept that it cannot be suggested that the Chairman had wholly forgotten about the case and we would not suggest that there was any intention on the part of the Chairman to do other than properly discharge his duty of writing up the Tribunal’s judgment.  However, neither length nor detail serve to reassure against risk. What matters is what the judgment contains as compared to what it should contain. Various questions arise including: Has it identified the issues in the case?  Have conflicts in the evidence relevant to those issues been resolved?  Have adequate findings in fact been made?  Has the Tribunal set out a clear and logical process of reasoning which leads to the decision made in the light of the facts found?  If the answer to any of these is in the negative is that because of delay?  If so, does it show that there is a real risk of the party who complains of the delay having been denied a fair trial?  We consider that whilst it may not be difficult to state, with some confidence, that the Tribunal decided to dismiss the claim, it is self evident that delay will make it more difficult not only for a Tribunal to record accurately the relevant evidence and findings made but, importantly, the reasoning processes gone through when it reached its decisions on the issues before it.  Further, we accept Mr Loughney’s submission that when it comes to considering a judgment with a view to ascertaining whether or not reasonable grounds of appeal exist, the reasons for the decision are all important. 

29.	This case was not straightforward.  It involved a seriously disabled claimant who had claims for unfair dismissal and disability discrimination.  There were two separate aspects to the latter.   He had been taken into the respondents’ employment with them being fully aware of his disability.  They tried, unsuccessfully, to dismiss him on grounds of that disability in 1994 when their Appeal Committee made a decision which was evidently of critical importance namely that his appeal against dismissal should not only succeed but that if there was no post available that was suitable in the light of the claimant’s disabilities, he was to be retained on a supernumerary basis.  When he was subsequently dismissed, on 31 October 2000, that was again because of his disabilities. It was, however, in circumstances where, on the findings that the Tribunal made, what the respondents had done on reaching the view that the claimant was not able to carry on in the post that he had been given following the 1994 appeal was look to see if there was a vacant post available for him.  They had not looked into the possibility of continuing to place the claimant in work on a supernumerary basis, notwithstanding the decision of their Appeals Committee in 1994.  

30.	In these circumstances, it is understandable that Mr Loughney, on behalf of the claimant, saw matters as raising an important issue of social policy.  Whether he is right about that may be another matter but we can see how and why someone in the claimant’s position would seek to approach matters on that basis.  And we accept that it is surprising that the Tribunal have not expressly set out in their judgment that that was the context in which this claim was litigated.  

31.	Also, we can fully understand how and why it would not have been the claimant’s position that he would abandon his redeployment case since that plainly lay at the heart of what he had to say about reasonable adjustments.  The Tribunal’s statement that he had done so, at paragraph 64, to which we have referred, is mystifying. 
32.	We are concerned that the Tribunal stated that Mr Loughney was not proceeding with the redeployment case and, furthermore, that the Tribunal, in its reasoning, only looked at the question of whether or not the respondents looked for a vacant post and found that the claimant could not be redeployed because there were no suitable posts.  They appear to have quite missed the point that arises from the 1994 decision that the claimant should be retained as a supernumerary and that it was argued that it was not fair that they were backtracking on that, in 2000.  There evidently was an argument that the respondents required to consider his further deployment as a supernumerary at that stage but the Tribunal have not dealt with it.    

33.	We can also appreciate the claimant’s concern about the approach to the evidence on supported employment.  The points raised by Mr Loughney regarding adequacy or otherwise of the special needs assessment and the failure to look not just at vacant posts but at retention on a supernumerary basis relate again to the central issue in the case yet they are not dealt with by the Tribunal at all.   
 
34.	We see the failure to record the evidence about spitting that Mr Loughney referred to as of lesser importance although again, we can understand how that failure has contributed to the claimant’s concerns. 

35.	It seems to us that the inordinate delay in this case is what has given rise to these difficulties with this judgment.  Apart from the last matter, they cannot be ignored as having been peripheral or de minimis to the overall position, as was the assessment in the Olwa case.  Rather, we are satisfied that the delay here has given rise to a real risk that the claimant has been denied a fair trial. 

Disposal 
36.	As regards further procedure, we do not see that the lack of a fair trial in respect of the pre- dismissal discrimination allegations could now be cured by allowing a rehearing on that issue.   As Mr Loughney accepted, it would not be feasible to revisit the evidence relating to it, all of which appears to have been hotly disputed, so far down the line.  Matters are different so far as the unfair dismissal claim and the claim for disability discrimination in connection therewith are concerned though.  It appears that much of the essential factual material is not disputed and Mr Loughney did indicate a willingness to seek to agree as much as possible by way of Joint Minute, for the purposes of any future hearing.  We will, accordingly, pronounce an order setting aside the judgment of the Employment Tribunal and remit the case to a freshly constituted Tribunal  to proceed but only in respect of that part of the claimant’s claim other than his claim for pre- dismissal discrimination.  It would plainly be inappropriate , in the circumstances,  for the case to remitted to the same Tribunal . 

37.	By way of postscript we should mention that Mr Loughney raised a question as to whether or not there requires to be a particular procedure provided for where there is delay in the promulgation of a judgment.  He advised us that he had written to the Employment Tribunal regularly during the period of delay to enquire as to progress.  He would have wanted there to have been a hearing at which the possible options for progress could have been discussed.  We can see merit in that.  However, we do not see that there would need to be a specific rule for that to happen.  A party concerned about delay in promulgation of an Employment Tribunal judgment should write to the Scottish President and request that he hold a Case Management Discussion to discuss further procedure in the case.  We are satisfied that it would be within his existing powers to do so and can see that such a hearing could prove to be very helpful.   However, we reiterate that it is our understanding and impression that for there to be a delay such as occurred in this case is a far cry from the norm and we do not for one moment imagine that there will be much need for such hearings in the future.