DESTROYED IN COURT

0240 TRIBUNAL  EXTENDED REASONS & REVIEW part 5

 [this is part of the extended reasons, together with the response I provided to the Tribunal for review] 

The Tribunal's Findings 

39. Despite the detailed and wide-ranging evidence of Mr Mercer, we could find no evidence that the Respondents were in breach of contract, so as to justify Mr Mercer in resigning, as he did on 4 February 2003. Mr Mercer's resignation was not in response to any breach by the Respondents, but simply because he grossly misread the correspondence from the USS and the University. In writing to Mr Mercer about his retirement date, the University was simply responding to their reasonable belief that Mr Mercer did want to retire.

Even if I had grossly misread the letter of 21 November, as is asserted here but denied by me, the University chose to make no response, even when requested twice in writing, which disabused me of this grossly incorrect belief. In any case, as reported in para 38, the university did indeed believe that retirement was what I sought; and made this the central plank of their defence. In addition, a series of incidents were shown to have occurred; which in their own right would have lead to constructive dismissal. This claim is not discussed at all. 

40. In any event, we have come to the conclusion that the primary reason for Mr Mercer's resignation on 4 February was his wish to take up the enhanced ill health early retirement benefit rights: we do not believe that Mr Mercer was simply mitigating his loss, as he claimed, in completing and delivering the relevant form.

The Tribunal may believe this factor, as advanced by the OU’s counsel, to be my prime motivation - and it seems to have given a great deal of weight to this – but this should not enter into any decision. As I responded in my summing up, however, the idea that I planned to take up a retirement income of £12,000 pa instead of £40,000 pa for doing the job I loved at the OU, is literally ludicrous. In any case, I could have continued negotiating until the middle of 2003 and still taken up the enhanced early retirement benefits – in the process earning an extra £5,000. However, I reasonably believed I had been constructively dismissed and had only three months to act on this. This was the only reason for the urgency of my decision. However, once I did resign then I was bound to mitigate my loss by taking up the USS offer. 

41. We can find no evidence that any protected disclosure was the reason or principal reason either for any acts of detriment (of which we can find no evidence) or of dismissal. 

42. We have not been able to find that Mr Mercer was disabled in respect of his heart condition and depression, for the reason set out above. However, it was accepted by both the Respondents and the Tribunal that Mr Mercer is disabled because of his diabetes. 

43. Nonetheless, we could find no failure on the part of the Respondents to fulfil any obligation to make reasonable adjustments. They clearly did so, in referring Mr Mercer to Dr Sorrell, and in attempting to resolve the disagreement relating to the study leave issue. So even though it is accepted that Mr Mercer was disabled with regard to his diabetes, he has been unable to found a successful claim on that ground. If the Tribunal were wrong in its conclusions regarding the heart condition and the depression, we would nonetheless come to the same conclusion so far as those two additional heads of claimed disability are concerned: there is no evidence of any discrimination or any failure to comply with the duty to make reasonable adjustments.
 

44. In any event, despite Mr Mercer's meticulous account of his detailed complaints and over a period of more than 10 years, he was unable to demonstrate that there had been any act of detriment or discrimination (whether resulting from a protected disclosure or from a disability) that had taken place within 3 months of his Originating Application. The Originating Application had been presented on 1 May 2003, so that the three month jurisdiction period had commenced on 2 February. The only relevant incident within this timescale was the Applicant's resignation on 4 February. We have found Mr Mercer's resignation to be the result of his grossly misreading the correspondence about early retirement. We can find no other earlier incident which could be brought within the Tribunal's jurisdiction, whether on the grounds of reasonable practicality in the case of dismissal for a protected disclosure, or where it would be "just and equitable" to extend time to give jurisdiction in respect of an alleged act of disability discrimination.

The Acts do not limit ‘jurisdiction’, especially in terms of a series of actions, to 3 months prior to the application; especially where the 3 month limit for application would inevitable mean that anything prior to this date – including the constructive dismissal itself – could not be taken into account.
 

45. The only acts or omissions that we can identify in the period immediately prior to Mr Mercer's resignation on 4 February 2003, are the USS correspondence commencing with their letter of 13 November 2002, and the University's failure to respond to Mr Mercer's Solicitor's letters of 22 and 28 November.

46. Clearly the early retirement decision did arise out of Mr Mercer's overall medical condition. But whether it related specifically to Mr Mercer's disability under the 1995 Act, or not, we are satisfied nonetheless that it arose initially from his own instructions to Dr Sorrell, so that we would not be justified in extending jurisdiction on this issue back to September/November 2002.

The chain of events, leading to the ‘retirement’ claim by the OUBS, cannot be arbitrarily cut off in this way. 

47. We cannot find the Respondent's failure to respond to the letters of 22 and 28 November from Mr Mercer's Solicitors to be an act of detriment or discrimination. As the letter from Miss Stocks of 17 December shows, the Respondents had believed that they were acting in good faith in responding to Mr Mercer's apparent wish to retire.

However, the OUBS did not attempt to disabuse me of my fear that I was being threatened with dismissal; and still claim my retirement was a fact. 

48. For all the reasons set out above we find that all of Dr Mercer's claims fail. The provisional Remedy Hearing date of Tuesday 15 June is vacated.
There were also some surprising omissions, especially in the context of my claim (as part of my summing up submission) that the constructive dismissal was also due to one of the last of a series of incidents which justified leaving:

a)      Breakdown in Trust – one of the reasons for the large number of references was that there had been a significant number of incidents – including a failure (indeed refusal) to allow me to have a union representative present at the three key meetings - which led to the final breakdown of trust. Indeed, OU counsel, in his summing up, also argued himself that this breakdown had occurred; but so early, by mid 2002, that it was out of time. The breakdown was most importantly illustrated by the Dean’s email of 11 October 2001; which, despite its importance to my case, was not appropriately addressed in the ‘Reasons’.

b)      Excessive Workload – the fact that my workload in the run-up to my breakdown was excessive, and was not properly managed (with no line manager in place), was never disputed; but is not discussed in the ‘Reasons’ even though this was a key element of the one appeal (that of Mrs Jones) allowed in Sutherland v Hatton.

Most important of all, the bullying by the Dean – which both my witnesses described (most graphically, under cross examination, in the context of a ‘climate of fear’) and the Dean himself documented in his email of 11 October 2001– is not mentioned except in a passing reference to my originating claim.

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