Graham v Nexia Solutions Ltd & Anor

This is a renewed application for permission to appeal. The application is made by Mr Eric Graham in person. The decision which he wishes to appeal is that of the Employment Appeal Tribunal, HHJ Birtles, who dismissed Mr Graham’s two appeals against the decision of the employment tribunal. HHJ Birtles said he could find no point of law arising from the decision of the employment tribunal. The employment tribunal, which heard Mr Graham’s claims for unfair dismissal and disability discrimination against the respondents, Nexia Solutions Limited and the United Kingdom Atomic Energy Authority, unanimously decided, in a judgment that was sent to the parties on 28 August 2007, that Mr Graham’s claims of discrimination on grounds of disability and of unfair dismissal were not well-founded. They were therefore dismissed against both respondents.

I have explained to Mr Graham, who has conducted his own case throughout -- in the employment tribunal, the Employment Appeal Tribunal and here -- that in order to grant permission to appeal to the Court of Appeal and to secure a hearing by three judges in the Court of Appeal it is necessary to show, first, that the decision of the tribunal raises a question of law and, secondly, that there is a real prospect of that succeeding. There can be mistakes in the decision of the tribunal on matters of fact and points of law, but that does not necessarily mean that there is a real prospect of succeeding. Tribunals must give adequate reasons for their decisions. It is not an error of law for a tribunal to give less than comprehensive reasons. The reasons must be good enough to explain and justify the decision which the tribunal has reached. I mention this because, when I come to deal with Mr Graham’s submissions, it will be noted that in a number of respects what he is aggrieved by is the failure of the employment tribunal to deal with the various points that were raised in the proceedings.

In order to understand the arguments which have been put in writing for this morning’s hearing and then developed orally by Mr Graham, I should sketch the basic background to this unfortunate dispute. Mr Graham was employed as a scientific officer at the Sellafield nuclear plant until he was dismissed on 15 November 2006. There was an appeal against that decision, and the appeal failed. The dismissal took effect on 14 February 2007.

The events leading up to the dismissal were that in September 2001 Mr Graham was hospitalised with depression. He was well enough to return to work, and he remained at work from March 2002 to 26 November 2003. But on 26 November 2003 he went on sick leave and he never did return to his job. There were efforts by the respondents to get him back to work and there were efforts to negotiate a voluntary retirement, but they came to nothing, and ultimately the respondents decided to dismiss him.

He took his case to the tribunal, at which Mr Graham conducted his case in person but both respondents were represented by counsel. The tribunal heard evidence and argument over a period of five days, and they reserved their judgment and then gave detailed reasons running to 16 pages, setting out their findings of fact and summarising what the relevant law was in the Employment Rights Act and the Disability Discrimination Act.

The tribunal’s conclusions started at page 14, paragraph 16, where they said, first, they were unable to find direct discrimination within the meaning of the Disability Discrimination Act. They saidthe whole case was predicated upon Mr Graham’s application for ill-health retirement:

“for which a person not having the particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from those of the disabled person. Such a person simply would not qualify for ill-health retirement in any event.

17.

It was accepted by both of the respondents that [Mr Graham]was at a disadvantage for the purposes of section 4A [of the Act] but we cannot see that in circumstances where [he] simply could not or would not return to work even on hours reduced to a day or less with medical support, there was anything further that it was reasonable for the employer to do.”

They accepted that, for the purposes of disability-related discrimination under section 3A(1), he was treated less favourably, but they then pointed out that that treatment is justified for the purposes of subsection (1)(b) “where the reason for it is both material to the circumstances of the particular case and is substantial”. The tribunal said that in their view there could be no clearer justification than in this case. He did not qualify for ill-health retirement due to the fact that there was insufficient medical evidence to suggest permanence to his condition. He had the opportunity of a two stage appeal. There were two medical opinions obtained together with consultation with his own doctor, his own psychiatrist and an independent psychiatrist. It was clear, they said, that his own doctor did not feel that he was able to support an argument for permanence nor did the claimant consider that he could return to work under the most helpful and gradual circumstances offered. The tribunal said that their function in respect of this was not very different from the task they had to perform in the unfair dismissal provisions of the Employment Rights Act. The task of the tribunal was to adopt a range of reasonable responses approached to considering the reasonableness of a dismissal and under section 3A of the Disability Discrimination Act to consider the materiality and substantiality of the employer’s reasons.

The tribunal found that there had not been any less favourable treatment amounting to direct discrimination. It also found that there had not been a failure to make reasonable adjustments and, in relation to disability-related dismissal, they accepted that it was so related but was justified. As to unfair dismissal they found that the reason put forward by the respondents was capability, namely ill-health. That was a potentially fair reason; there was no criticism of the procedure followed. They satisfied themselves that the statutory procedure had been followed and accordingly, as to the question that the dismissal was unfair or fair, they said that depended on the circumstances and had to be determined in accordance with equity and the substantial merits of the case. On those matters they said they were satisfied that the employer took every reasonable step to consult with both the claimant and those representing him, including his union secretary; obtained all possible medical advice; adopted a reasonable procedure; and applied a sanction that any reasonable employer might have applied to the circumstances of the case. Dismissal, they concluded, was a reasonable response on this basis. They were not satisfied that there had been any failure on the part of either the respondent or their employees or agents to give proper consideration to the question of ill-health retirement for Mr Graham as an alternative to dismissal or to seek appropriate and specialist medical advice. Accordingly it was not necessary for them to decide the issue whether Dr Adkins was acting as an employee or agent. They did not find that he was treated less favourably as a disabled person in being refused access to the scheme or that the respondents failed to make any reasonable adjustment. Insofar as the discrimination was disability related, as opposed to direct, they said it was justified as being material to the circumstances of the particular case and substantial.

So that is the decision that Mr Graham was dissatisfied with on a number of grounds, which he placed before the Employment Appeal Tribunal. There was a hearing before HHJ Birtles on 10 December 2007. HHJ Birtles heard Mr Graham in person and he gave detailed consideration to the various grounds that were set out by Mr Graham in his notice of appeal. I will come to those in a moment, but what HHJ Birtles decided, on the basis of the written and the oral submissions, was that, having considered all the points Mr Graham had raised, and for the reasons he attempted to give in the course of his judgment, he concluded there was no arguable point of law which would permit him to put the case to a full hearing. Therefore the case was dismissed at that stage.

Mr Graham then applied to this court for permission to appeal and I dealt with it first of all on the papers on 11 June. I refused permission because, in my view, there was no real prospect of Mr Graham persuading the Court of Appeal that there was an error of law in the employment tribunal’s decision of 28 August 2007 rejecting his claims. Nor was there any error in the decision of the Employment Appeal Tribunal. This, I pointed out, was a case where dismissal had followed three years’ absence from work on the grounds of ill-health.

In renewing the application for permission, Mr Graham has very helpfully put before the court a skeleton argument which deals fully with his arguments as to why he is dissatisfied with the decisions of the tribunal. He says that the tribunal failed to state the respondents’ entire grounds of resistance were shown to have failed in the hearing in July 2007. Their case should have failed and cannot possibly have been successful. He then refers to the various grounds of resistance and the acts which he described as unlawful acts on the part of the respondents. He refers to the failure of Dr Ridout to comply with the respondents’ own procedures, and he criticises the decision of the employment tribunal as not complying with the requirements of giving adequate reasons for their decisions so that he was in a position to know why he had lost the case. The details of the reasons were those that were laid down in Meek v City of Birmingham District Council [1987] IRLR 250. He says that the losing party should at least be able to tell why he has lost and be able to identify from the reasoning whether any error of law was available to be taken on appeal.

He says that the respondents acted as an unreasonable employer and there were errors of law on the part of the tribunal in its failure to consider the entire case facts in accordance with the provisions of the 1996 Employment Rights Act or the Disability Discrimination Act. He says that no reasonable and honest employer would in these circumstances have dismissed him, because no honest and reasonable employer would have got into these circumstances in the first place. He refers to the fact that he was instructed to apply for ill-health retirement on three grounds, but the respondents had no intention of allowing a successful application, and that was in breach of their statutory obligations. He also made a point about the comparator. He said that an appropriate comparator had not been used in the consideration of his claim by the tribunal. He summarised his conclusions by saying that the respondents had acted with a malevolent motive and intent: that was to dismiss him, inflicting economic loss on him by means of dishonesty and deception, while at the same time attempting, with success to date, to avoid liability for breaches of their statutory obligations. He said that the authority and the pension scheme manager, in conspiracy with Nexia Solutions Limited and the BNFL occupational health department, had defrauded him of a successful application for an ill-health retirement pension, and this had resulted in his unfair dismissal.

During the course of the oral hearing this morning, Mr Graham has emphasised a number of these points: in particular the fact that the employers’ respondents had not complied with their own procedures; that an inappropriate comparator had been used by the tribunal; that he had been a victim of unjustified less favourable treatment at which he feels aggrieved; and that he has not been given adequate reasons by the tribunals for rejecting his claims. No reasonable adjustment had been made to deal with his disability. He found that he was a victim of circumstances and that in all the circumstances the medical evidence was that it was not possible for him to return to work, the medical advice being that if he returned his illness would recur. He therefore says that what was done by the tribunals in this case was to reach a perverse and unfair conclusion.

This is, I agree with Mr Graham, an unfortunate case; cases of prolonged ill-health always are. It is obviously not appropriate to dismiss somebody from their employment simply because they have become ill. Proper procedures have to be followed. On the other hand very prolonged periods of absence through ill-health, such as arise in a case where it runs into years rather than months, create real problems for employers and for fellow employees.

In this case the Tribunal examined in detail the history of the way in which the respondents dealt with the situation which was brought about by Mr Graham’s ill-health, and what they reached was a conclusion on the facts. I have read out the relevant parts of their decision. It was really that there was nothing more that the respondents could have done as an employer to deal with this situation fairly, having regard to their obligations under the Employment Rights Act or having regard to their obligations under the Disability Discrimination Act.

I know that Mr Graham will be disappointed to learn this, but I have come to the conclusion, having considered the decision of the employment tribunal, the judgment in the Employment Appeal Tribunal and the various written and oral submissions made by Mr Graham, that there is really no prospect of this appeal succeeding. The matter has been thoroughly gone into twice already in the tribunals, and although Mr Graham is of the opinion that the matter has not been dealt with as it should have been, either by the respondents or by the tribunals, I am satisfied that there is no real point of law in this case which would justify the appeal going on to be heard by three members of the court.

I am in no doubt that the correct course is to refuse permission to appeal. The application is therefore not granted.