Francis v Cleveland Police Authority UKEAT/0335/10/ZT

Appeal against the level of compensation awarded as a result of a successful unfair constructive dismissal claim. Appeal allowed and remitted to the same Tribunal.

The claimant resigned from her post with the respondent following a period of bullying and isolation. She found work soon afterwards but resigned from this new post within 3 months. The Employment Tribunal found that she had been unfairly constructively dismissed by the respondent but limited her loss of earnings compensation to the date on which she resigned from her new job. The Tribunal’s reason for this was on the basis that there were no medical records reflecting her case that she was still suffering from work-related stress at the time and she had in fact resigned from the new job because the work just did not suit her. The claimant appealed against the remedy award.

The EAT found that the Tribunal was wrong to proceed on the basis that there was no relevant reference in the claimant’s medical records at the time she left her new job. The Tribunal should have checked with the claimant and her GP whether in fact there were recorded visits to the GP at the relevant time. The Tribunal therefore had proceeded on an assumption or finding of fact concerning the absence of recorded visits to the GP which no reasonable Tribunal, on a proper appreciation of the law and the evidence, could have proceeded.

______________________

Appeal No. UKEAT/0335/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 April 2011

Before

HIS HONOUR JUDGE RICHARDSON

MR K EDMONDSON JP

MS N SUTCLIFFE

MRS S FRANCIS (APPELLANT)

CLEVELAND POLICE AUTHORITY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR JOSEPH FRANCIS (Representative)

For the Respondent MR COLIN BOURNE (of Counsel) Instructed by: Cleveland Police Authority Legal Services Police Headquarters P O Box 70 Middlesbrough TS8 9EH

**SUMMARY**

PRACTICE AND PROCEDURE – Perversity

The Tribunal decided key issues, relating to the Claimant's reasons for resigning from a job in December 2007, on the basis that there were no entries in medical records reflecting her case that she was suffering from work-related stress at that time. This was a mistaken finding or assumption on the part of the Tribunal, which in this respect placed upon a medical report commissioned to deal with different issues a weight which it could not bear. There were in fact important contemporaneous entries in the Claimant's records reflecting her case that she was suffering from work related stress. The Tribunal could not legitimately assume the contrary without raising the matter with the witnesses. Appeal allowed. Case remitted.

**HIS HONOUR JUDGE RICHARDSON**
  1. This is an appeal by Mrs Susan Francis ("the Claimant") against a judgment of the Employment Tribunal sitting in Thornaby (Employment Judge Rogerson presiding) dated 19 April 2010.
  1. The Claimant had succeeded in her claim for unfair dismissal against the Cleveland Police Authority ("the Respondent"). The Tribunal gave judgment in her favour on 1 April 2009, and the Respondent's subsequent appeal to the Employment Appeal Tribunal was dismissed.
  1. The judgment which is the subject of this appeal was in respect of remedy. The Tribunal awarded compensation in the sum of £6,017.76. In so doing it concluded that the Claimant's loss after a particular date – 17 December 2007 – was not attributable to the Respondent. The Claimant appeals on the ground that this conclusion was based on fundamental errors of fact.
  1. Since there is an appeal to the Appeal Tribunal only on a question of law, the scope for an appeal which challenges findings of fact is extremely limited. Such appeals rarely succeed, because as a general rule there will be a sufficient basis in the evidence for findings of fact which a Tribunal has reached, even if it could have or arguably should have reached different findings. We shall return later to the leading case on this subject.
**The factual background**
  1. The Claimant was employed by the Respondent as a VDU operator and then a PNC operator from 10 October 2005 until her resignation, which was made by letter dated 16 September 2007. The letter stated that it was given "with the required notice", so it took effect on 13 October 2007.
  1. As the Tribunal found in the reasons which it gave for its judgment on liability, the Claimant was bullied and isolated by colleagues at work, who even kept a secret diary about her, in effect orchestrating criticisms of her. The conduct of her line manager, an inspector, was unacceptable. She was made subject to an "Action Plan" in a way which was unacceptable. She was absent from work due to anxiety and depression from April 2007 onwards. The Tribunal was critical of the manner in which the Respondent dealt with her absence thereafter. The Tribunal held that she was entitled to resign as she did and that the Respondent had constructively and unfairly dismissed her.
  1. The Claimant obtained alternative employment with Barclaycard as a Customer Sales Advisor at an annual salary of £14,110 gross – substantially less than she earned with the Respondent. This employment commenced on 17 September 2007; but she resigned on or about 17 December 2007. This was the date which the Tribunal took as the "cut-off" point for her losses. She then remained unemployed, and on incapacity benefit, for some time. Eventually she began to run her own business.
  1. The Claimant's resignation letter to Barclaycard contained the following passage:

"Please accept this letter as my resignation from Barclaycard with immediate effect.

I am very grateful for the opportunity to have worked within Barclaycard and have met some lovely people during my time. However, prior to starting my employment I had faced difficulties with my previous employer through no fault of my own, a matter which I am pursuing through the courts. This situation has placed me under immense stress and is making it difficult for me to remain at Barclaycard in my role as a fulltime member of staff. I regard it unfair on Barclaycard if I was to stay and have to take time off due to stress, which is the case at the moment hence my resignation. I am taking my doctors advice to reduce the amount of pressure on myself at the current time."

**The Tribunal proceedings and hearing**
  1. Although the potential issues for the Tribunal to consider were much wider, we will concentrate on those materials which relate to the Tribunal's conclusion that the Claimant's losses after 17 December 2010 should be not attributed to the Respondent.
  1. The Claimant's claim form was served on 6 November 2007 when the Claimant was actually working at Barclaycard. She disclosed in answer to standard questions on the claim form that she had obtained another job. She said "will start new role November 13th 2007". She said she was earning £850 net per month.
  1. The Tribunal hearing in January 2009 dealt only with the question of liability. The circumstances in which she took the Barclaycard job might have been of some relevance to the issue of liability, but they were not explored in detail. There was, however, reference to a welfare visit by the Respondent to the Claimant at home in which the Claimant stated that she had been interviewed over the telephone for a job but had not felt in the right frame of mind to take the job. She said it would involve a pay cut and that she felt she should not be forced out of her employment with the Respondent.
  1. The remedies hearing took place on 2 and 3 February 2010.
  1. Prior to the hearing a medical report was jointly commissioned by the Claimant and the Respondent. The report was produced by Dr Dunleavy, a consultant psychiatrist, and is dated 24 October 2009. He was not asked to address specifically any question concerned with the circumstances in which the Claimant joined or left Barclaycard. He was asked more general questions concerning her psychiatric condition; whether it was sustained in consequence of the dismissal; the extent to which her working capacity was affected by it; prognosis; and whether anything else in her history or records would restrict her earning capacity and if so to what extent.
  1. Dr Dunleavy made no mention of the Barclaycard job or the Claimant's resignation from it. He dealt with the issues he was asked to address. He said:

"17.1 Mrs Francis has a moderate depressive disorder with anxiety symptoms. This illness began in April 2007 and she has continued on anti depressants since then. She has an associated adjustment disorder precipitated by leaving work. I would attribute these conditions entirely to problems she experienced at work with Cleveland Police.

17.2 Mrs Francis will not be as competent at work while she is anxious and depressed. Her symptoms are controlled to some extent by drug treatment but she is not yet in full remission. It is unlikely she will ever be able to return to her former Police work because of her loss of trust and the distress she suffered at the hands of her colleagues and superiors in the Police in the past. She has decided to work for herself in the future and is currently setting up her own talent agency.

17.3 The prognosis for long term recovery is dependent on the precipitance and personality. Mrs Francis has a vulnerability to anxiety and distress but despite this she has shown herself to be a resourceful and determined individual with considerable personality strengths. This in conjunction with the remainder of work related stress suggests a good prognosis. The natural course for her anxiety and depression should be gradual improvement in symptoms. However the Tribunal and proceedings are an ongoing stresser and will serve to prolong her psychiatric illness.

17.4 Mrs Francis has coeliac disease which is not responsive to diet and has caused osteoporosis. She also had severe symptoms of chronic fatigue for some years. It will be up to experts in the field of physical medicine to determine if these physical problems will have an adverse effect on her continuing employability."

  1. In her witness statement for the remedies hearing the Claimant said the following concerning her employment with Barclaycard.

"13. At the time, I thought that I had applied for a customer service role at Barclaycard, certainly that was the job title for the position advertised. In fact, it actually turned out to be a sales role. Frantic at the inactions of CPA, I reached the point where I realised that I had no alternative but to resign from Cleveland Police and secure employment anywhere else.

15. I had serious misgivings about working for Barclaycard almost right from the start, but it was the only job that had been offered to me as an alternative to a return to PNC. The position was very different to my former job. It was a hard sales role where you are expected to sell a product on every call with the team leaders pushing like mad. I was very upset by the loss of my employment with Cleveland Police and I think I had underestimated the effects that had on me and I realised that utter desperation had panicked me into taking a position that was simply not for me."

  1. Both Dr Dunleavy and the Claimant gave evidence before the Tribunal, as did certain witnesses for the Respondent.
  1. The Respondent's case, as presented to the Tribunal, may be summarised as follows. It was suggested that the Claimant had begun to look for alternative employment long before she resigned; that she obtained employment with Barclaycard of her own volition and left because she did not like the work; and that there was no medical evidence of any description to support her case that she left because of problems with her health. It was argued that it was the Claimant's choice to terminate the employment because of the nature of the work she was required to undertake rather than because of any continuing effect on her of the situation she had left behind at Cleveland Police.
  1. The Claimant's case was that her resignation letter was genuine; that she took the Barclaycard job because she sought the post in panic – it was in effect a stopgap job; she left the Barclaycard job because she was indeed struggling with psychiatric illness; the short period of employment with Barclaycard did not break the chain of causation.
**The Tribunal's reasons**
  1. The Tribunal's conclusions, so far as relevant, are set out in paragraphs 7.1 and 7.2 of its reasons.

"7.1 Based on our findings of fact we concluded that the claimant had left her employment because of choice, it was not a job that the claimant wanted to do. We had not found as the claimant contended that she took the Barclaycard job because she was driven out of the respondent's employment and gave up the Barclaycard job because she was falling ill as a result of her dismissal (the adjustment disorder). The medical evidence did not support the claimant's case. There were inconsistencies in the claimant's evidence which we have referred to in our findings of fact. We were satisfied that the claimant left her job with Barclaycard because she was unhappy with the job, because it was not what she wanted to do. She would have known what the job entailed before she started the job, during the training process and while she was doing the job. She had no period of absence in the three months that she worked for Barclaycard, during that time she had taken a day off for filming purposes and it had always been the claimant's desire to pursue a career in the arts and media business as evidenced by the number of applications she had made in that line of work before her resignation and subsequently. In light of the decision in GAB Robins (UK) Limited v Triggs (2008) ICR529 the tribunal has to differentiate between losses arising out of the pre dismissal repudiatory conduct and the losses following from the dismissal (see paragraphs 34, 37 and 39 of the Judgment) as it is only the latter that can be compensated in accordance with section 123 of the ERA 1996. There was no medical evidence to support the claimant's case that she gave up the Barclaycard job as a result of the adjustment disorder relating to her dismissal. In her letter of resignation from Barclays she makes reference to difficulties with her previous employers prior to starting her employment but makes no references to difficulties related to the dismissal itself. Significantly the claimant had not referred this employment and the circumstances of her leaving to Dr Dunleavy which we would have expected, if she and in turn he were to associate it with the dismissal as part of the issues covered in his report. In all the circumstances we had found that the claimant's employment with Barclaycard had ended because she did not want to do that type of work that was her choice.

7.2 In those circumstances the claimant's losses after 17 December are not losses arising on dismissal insofar as they were attributable to action taken by the employer, and therefore the claimant's employment with Barclaycard which ended by choice on 17 December puts an end to the losses arising from the termination of her employment with the respondent. In so concluding we were applying the guidance in Dench and were not treating the consequences of unfair dismissal as ceasing automatically when the Barclaycard job supervened but were considering whether the loss thereafter was in consequence of the dismissal. We concluded it was not, but was in consequence of the claimant's choice with a view to working in another career in Arts and Media. We also took into account the claimant's incapacity to work after 19th December and the extent to which the adjustment disorder precipitated by the dismissal was a factor. The report of Dr Dunleavy at paragraph 17.3 refers to a good prognosis with "the removal of work related stressors" and refers to the tribunal proceedings as the ongoing stressor which will prolong her psychiatric illness. These were not losses attributable to the dismissal. Having concluded so on issues 1 and 2 it was not necessary for the Tribunal to consider issues 3, 4, 5 and 6, 7 and 8 on the list of agreed issues."

  1. Underlying these conclusions, however, are findings of fact which the Tribunal made at some length earlier in its reasons.
  1. In paragraph 2.6 the Tribunal noted that the Claimant "had not disclosed any documentation regarding this new employment until disclosure for the remedy proceedings." As the Tribunal recorded, she disclosed her offer letter, confirming relevant details of her employment. She also disclosed her resignation letter, from which we have quoted.
  1. The Tribunal rejected her explanation concerning the circumstances in which she accepted the Barclaycard job. The Tribunal considered that she was an intelligent woman who would have known from the outset what the job entailed. The Tribunal said:

"2.14 A further explanation for taking the Barclaycard job given in the claimant's witness statement was that she 'panicked'. If that was the case we would have expected to see some evidence regarding when the job was offered to her, how soon she made the decision to accept the job and further details regarding the circumstances of her acceptance. We did not accept the claimant's evidence that she panicked into accepting the job with Barclaycard. We found that the claimant left her employment with Barclaycard because she decided that the job was not suitable for her. It was a matter of choice for the claimant. She would have known what the job entailed from the outset and had managed to do the job for three months and could have continued in that job until she had secured other employment if she had wished."

  1. The Tribunal then went on to say that there was "another discrepancy in her evidence, in that she had not disclosed any information about the Barclaycard job to her medical expert …"
  1. The Tribunal, after referring to Dr Dunleavy's report, continued:

"2.18 In his report Dr Dunleavy goes through the claimant's background health, the history of her work with Cleveland Police, her family history and at paragraph 9, page 5 "the work history". We noted that the claimant did not disclose her period of employment with Barclaycard in that work history. In relation to the relevant extracts from medical records at paragraph 14, page 9 there is an entry on 17 August 2007 which is an extract from a letter to the GP and then there is an entry for 28 February 2008 which is a letter to the GP from Dr Garner, Psychiatrist. There is no reference to any visits to the GP or reference to the medical reasons why the claimant left her job at Barclaycard. We would have expected some kind of entry to be made as given the claimant's evidence that she left as a result of the 'stress issue' and for it to be disclosed in the medical records and for some comment to have been made by the claimant about this given the issues that Dr Dunleavy was considering. This was in our view a glaring omission from the claimant. Dr Dunleavy stated that the claimant was able to undertake the duties associated with setting up a business because she was effectively in control. In respect of the claimant's ability to work at Barclaycard, he stated that the claimant had difficulty in going back to the Police but she could function in another situation.

We considered why the claimant had not disclosed the Barclaycard employment to her medical expert. In our view she was deliberately avoiding discussing this and was hiding information from the medical expert to improve her case with the Tribunal on remedy. We also bore in mind the claimant's reluctance to provide disclosure of documents or evidence relevant to this issue, either by the documents or by covering this in more detail in her witness statement ie when she was interviewed for the job, when she was offered the post and when she accepted that offer.

2.19 Furthermore, if the stress of her dismissal was the reason she had left her job at Barclaycard we would have expected to have seen some medical records or evidence supporting that position. There was evidence that the claimant had attended her GP to report other matters during her employment and after her employment ended and if the reason for her loss of employment was the stress from her work with the respondent and the stress of the dismissal, we would have expected to see some entry in the medical records to reflect that. The claimant had not had any time off for absences from work due to sickness and had only taken one day off during her employment with Barclaycard for filming purposes. We saw no evidence about the medical position on 19 December 2007. There were no further medical reports or doctors reports confirming what the claimant had told her medical advisers at the time. We would have expected to see some records for this period to corroborate the claimant's case. We were not satisfied that the reason for the claimant leaving the Barclaycard job was stress of her dismissal or the stress experienced during her former employment.

We accepted the claimant's evidence that on the day after her employment ended she applied for and received Invalidity Benefit and she has been in receipt of Invalidity Benefit from 19 December 2007 to the Remedy Hearing. There was no documentation produced regarding this benefit and for what injury it was awarded and it is not covered in the claimants witness statement. This was a substantial period of time the claimant was incapable of working and the Incapacity Benefit payments continued after she set up her business in August 2009 because of the way the benefits operate."

  1. It was common ground that by the time of the remedies hearing the Claimant was seeking to establish a business of her own. The Tribunal said:

"2.21 In August 2009, the claimant established her business Kreative Talent Agency recruiting actors and undertaking promotion work. As part of the capital costs claimed the claimant claimed for equipment purchased in December 2008, prior to her resignation. The claimant had pursued an interest in this area for some time and would have left the respondents employment to pursue this career. She would not have remained in employment for 20 years to retirement."

**The medical evidence relating to the Barclaycard period**
  1. It was plainly of importance to the Tribunal that there was no contemporaneous medical record or evidence supporting the Claimant's position that she left her job at Barclaycard for reasons relating to her stress: see paragraphs 2.18 and 2.19, which we have already quoted.
  1. In fact there is, in the Claimant's contemporaneous medical records, considerable support for what she said at the Tribunal about the circumstances in which she left Barclaycard.
  1. On 4 December 2007 she visited her GP. The GP's note reads:

"Since work problem has had long standing sleeping problems. Ongoing anxiety. Tolerating the fluoxetine. Some days cannot control crying. Some panic symptoms also. Some obsessive thoughts regarding work problems. Has resigned and now working for Barclays."

  1. The GP diagnosed the Claimant as suffering from depression and an anxiety state. She continued medication, added an extra medication for use at night and asked the patient to return for review.
  1. On 19 December the GP saw the Claimant again. The GP's note reads:

"Sleep somewhat better and appetite has improved. Has resigned from job so that is one less stress. Is going to start up her own company. Main stress at the moment is the tribunal."

  1. The GP maintained the Claimant on medication, increasing the night medication, and gave advice on managing depression.
  1. In January 2008 the Claimant was described by the GP as "still struggling" with depression, anxiety and obsessive intrusive thoughts about work. Her medication was changed and she was referred for rapid psychiatric assessment.
  1. Accordingly it is plain from the medical records that the Claimant visited her GP shortly before and shortly after her resignation from Barclaycard; that she mentioned the job to her GP and that the GP regarded the ending of the job as "one less stress"; and that she was diagnosed as ill to a significant degree with anxiety and depression at this time requiring medical treatment and regular review.
  1. There is no doubt that Dr Dunleavy had the Claimant's GP and hospital records. He concentrated on the time of the Claimant's employment with the Respondent and on her condition at the time when he saw her. He mentioned the entry dated 19 December to which we have referred, but unfortunately dated it in 2008, rather than 2007, and quoted it only partially.
  1. The parties also had copies of the medical records. The Tribunal did not have copies in the bundle for the remedies hearing, though they had been in the bundle for the liability hearing.
**Submissions**
  1. On behalf of the Claimant her husband, Mr Francis, who represents her today, submits that the Tribunal's assessment of the question whether her loss should terminate at 17 December is vitiated by underlying findings which are unjustified.
  1. He submits that the Tribunal placed weight on the report of Dr Dunleavy, as regards the absence of medical records supporting her account of the circumstances in which she resigned from Barclaycard, which the report could not possibly bear. There was no relevant cross examination on the subject. If it was a matter of importance to the Tribunal then the Tribunal should have checked whether such records existed. He further submits that the Tribunal should have noticed and asked questions concerning the record which Dr Dunleavy wrongly dated in December 2008.
  1. He also submits that the Tribunal was unjustified in concluding that the Claimant had been reluctant to provide disclosure of documents or evidence relating to the issue of her resignation from Barclaycard. He points out that she had disclosed the existence of the job in her claim form dated 6 November 2007; that she disclosed in a welfare visit during her employment that she had been interviewed on the telephone for a job; that she disclosed the job offer and the resignation letter. Further he submits that the Tribunal was not justified in concluding that she failed to disclose the existence of the Barclaycard job to Dr Dunleavy. He says that neither the Claimant nor Dr Dunleavy were asked whether the matter was discussed. The matter was simply never put to them. Dr Dunleavy asked no questions of the Claimant concerning the Barclaycard job.
  1. Further, he points out that the Tribunal's finding concerning the purchase of equipment for the new business "before the resignation" is plainly insupportable. The Tribunal has confused December 2008, when equipment was purchased, with December 2007, when the resignation took place. He submits that the Tribunal's finding that the Claimant would in any event have left the Respondent to pursue her career is consequential upon that finding and therefore cannot stand.
  1. On behalf of the Respondent Mr Bourne seeks to uphold the judgment of the Tribunal. He accepts the existence of the medical evidence to which we have referred, and accepts that there were errors as to date in the report of Dr Dunleavy. He submits that it was for the Claimant to put forward to Dr Dunleavy and to the Tribunal such medical records as she wished to rely on. He submits that the Tribunal was entitled to take the view that the Claimant had not disclosed the job with Barclaycard to Dr Dunleavy, since there was no mention of it in the work history in the report.
  1. Further Mr Bourne submits that the Tribunal made findings as to other matters by virtue of which its conclusions ought not to be disturbed. He submits that the Tribunal made careful findings of fact not only in relation to the medical records but also in relation to the Claimant's evidence as a whole. It did not accept her evidence in a number of respects. There was ample evidence upon which it could reach the conclusions it did.
  1. Mr Bourne submits that the threshold for perversity is high, a submission with which we agree. He took us in particular to Yeboah v Crofton [2002] IRLR 634, to which we will now turn.
**Conclusions**
  1. As we have already observed, the scope for an appeal which challenges findings of fact is very limited.
  1. It is, we think, sufficient to cite the well-known judgment of Mummery LJ in Yeboah v Crofton at paragraph 93-95.

"... Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.

94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.

95. Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal."

  1. Within this judgment paragraph 93 refers in terms only to a "decision" of the Tribunal. But as paragraph 95 makes clear, an appeal may also be concerned with individual findings of fact which are unsupported by evidence or contrary to uncontradicted evidence. If the Appeal Tribunal concludes that there is such a finding of fact, the Appeal Tribunal will then have to assess its significance in the context of the decision as a whole. If a finding is of no real significance – because the conclusions of the Tribunal have been reached for reasons which are demonstrably independent of the finding – then the appeal will not be allowed. If, however, a finding is of real significance - in that an important conclusion of the Tribunal rests wholly or mainly on the finding – then the appeal will generally succeed.
  1. It is plain that the Tribunal proceeded on the basis that there was no relevant reference in the Claimant's medical records at the time when she left Barclaycard. The Tribunal's reasons in paragraph 2.18 (first paragraph) and 2.19 can be read in no other way. Whether one describes this as a factual finding or merely a factual assumption, the Tribunal was, as we have seen, wrong.
  1. The question then must be addressed: was this finding or assumption, even if it was erroneous, open to the Tribunal on the evidence which it heard and read? This, as we have seen, included the report of Dr Dunleavy but not the underlying medical records.
  1. We have reached the conclusion that in this respect the Tribunal placed upon the report of Dr Dunleavy a weight which it could not properly bear. Dr Dunleavy was not asked to address the circumstances in which the Claimant left Barclaycard. The questions which he was asked to consider did not necessarily require him to deal with those circumstances. Nor was he asked to set out in full all the medical records. It is plain that he did not set out all the medical records: for example, the Tribunal at the liability hearing relied on and quoted at length a GP letter dated 7 July 2007 which Dr Dunleavy did not mention.
  1. Before there could be a proper foundation for the Tribunal's conclusion it was in our judgment essential to check with Dr Dunleavy or the Claimant or both whether in fact there were recorded visits to the GP at the relevant time. It was not the Respondent's case that there had been no such visits: if it had been Mr Bourne would have put it in cross examination. If it was the Tribunal's own concern, the Tribunal should have raised it.
  1. Accordingly we conclude that the Tribunal indeed proceeded on an assumption or finding of fact concerning the absence of recorded visits to the GP which no reasonable Tribunal, on a proper appreciation of the law and the evidence could have proceeded.
  1. We must then assess the significance of the Tribunal's incorrect finding or assumption. We have reached the conclusion that it is integral to the Tribunal's reasoning in paragraphs 2.18 (both paragraphs) and 2.19.
  1. In paragraph 2.19 the finding or assumption is critical to the Tribunal's reasons for rejecting her evidence that she did not resign because of stress. We think the Tribunal may well have reached a quite different finding if it had seen the contemporaneous medical records. If, as the Tribunal thought, there were no recorded visits to the doctor at the time of resignation this would be a strong supporting point for the Respondent's case that the resignation was unconnected to her medical symptoms. As it is, the medical records may be thought consistent with her letter of resignation from Barclaycard. The records appear to describe a lady suffering at the relevant time from significant psychiatric symptoms requiring active treatment.
  1. In paragraph 2.18, the finding or assumption is an important feature in the Tribunal's reasoning that the Claimant failed to disclose her period of employment with Barclaycard to Dr Dunleavy. It is not easy to see why the Claimant should have deliberately failed to disclose this period of employment to Dr Dunleavy, given that it was mentioned in her claim form and was known to the Respondent. The alternative explanation is that Dr Dunleavy, not having been instructed to deal with such an issue, did not ask about it, and that the Claimant answered the questions she was asked. Since the employment at Barclaycard is mentioned in the medical records, which were already in the possession of both the Claimant and the Defendant and had been in the Tribunal's bundle for the liability hearing, it may be less likely than the Tribunal thought that she was trying to conceal the issue from Dr Dunleavy.
  1. The Tribunal was plainly wrong, in paragraph 2.21, to say that the Claimant claimed for equipment purchased "in December 2008, prior to her resignation". Since it chose the resignation date as its cut off point, we do not think this error can be ignored.
  1. For these reasons the appeal will be allowed.
  1. Both the Claimant and the Respondent are agreed that if the appeal is allowed it should be remitted to the same Tribunal. This is a testament to the fairness of the hearing which the Tribunal gave, on the question of liability and remedies, to both sides. Both sides are confident in the professionalism and fairness of the Tribunal and in its ability to look afresh at the matter in the light of the Appeal Tribunal's judgment. In these circumstances, having regard to the criteria set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the matter will be remitted to the same Tribunal.
  1. We emphasise that it is important that the Tribunal should look afresh at the whole of its findings in the light of the contemporaneous medical evidence, (which appears to indicate that the Claimant remained on medication throughout the period when she took and then resigned the Barclaycard job). The Tribunal should, subject to any further submissions from the parties, be willing to entertain further evidence or cross examination. It should not regard itself as bound by any of its existing findings on the question of remedy. The Tribunal should also keep in mind relevant legal principles when it decides whether to impose a "cut-off" date on the award of compensation. For example, principles relating to mitigation of loss may be relevant, requiring an assessment of reasonableness, and keeping in mind the burden of proof on such an issue.

Published: 27/05/2011 10:22

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