0268 TRIBUNAL  EXTENDED REASONS & REVIEW part 2

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

Protected Disclosures 

9.     Mr Mercer cited a number of examples of protected disclosures, among them: 

      (i)     his 1998 grievance about the activities of the then Dean, David Asch, which  he subsequently
           presented to the new Dean, Roland Kaye, in October 2000 

    (ii)    a complaint to the FCO in 1990; 

    (iii)   a complaint about apparent fraudulent claims for airfares to Ethiopia; 

    (iv)   a complaint to the AUT in October 2001; 

    (v)    a complaint about work place stress in May 1993; 

    (vi)   a copyright issue relating to Blackwells in April 1993; 

    (vii)  an incident at the 2 centres meeting involving David Parker in October 2001. 

It is however necessary for Mr Mercer to show that such disclosures fell within the terms of section 43A to 43H of the 1996 Act, and that he suffered a detriment under Section 47B on the grounds that he had made such a protected disclosure. As to dismissal, section 103A requires that Mr Mercer should show that the making of a protected disclosure was the reason or principal reason for his dismissal. Mr Mercer's principal complaint was that Mr Kaye changed his attitude towards Mr Mercer once he had been handed a copy of the 1998 dossier in October 2000. 

In the case of Para 9 vii, this alleged incident could not have taken place at the 2 Centres Meeting on 24 October 2001, the transcript of which (doc 113) was in any case not on the shortlist offered to the Tribunal for consideration, since David Parker was not present at this. I presume the meeting in question, which was referred to by the Dean in justification for his later anger, was the OUBS Workshop on 13 September; more than a month before the Dean’s email of 11 October. This day long review of the OUBS position was attended by members of the School Board; and David Parker was also invited to attend. Many of us considered that his invitation was a mistake, since the meeting as a whole was highly critical of OUBS management and of the resulting low morale. The diary entry of this meeting was allowed into evidence by the Tribunal during the hearing, without question as page 1036, despite that fact that this had been found, along with other personnel documents (in breach of the Data Protection Act) which showed evidence of deletions (page 1026), on the Dean’s own personal computer rather than on the main system monitored by the relevant Data Controller. 

10. We are satisfied that any of the incidents referred to above could amount to a protected disclosure. It is for Mr Mercer to satisfy us that he was discriminated against, or dismissed, on such grounds. 

This is indeed a key judgement decision, since it unequivocally states, on the basis of the evidence, that any one of the seven examples recorded in para 9 could, and should, be seen as a protected disclosure in the terms of the Act. 

11. Section 48(3)(a) of the Employment Rights Act 1996 provides that any complaint of detriment arising from a protected disclosure should be presented before the end of the period of 3 months beginning with the date that the act or failure to act to which the complaint relates. Section 48(3)(b) provides that time may be extended if the Tribunal is satisfied "that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months". 

         I was not fully aware that deliberate discrimination had taken place until disclosure of the October 11 2001 document, and not of the last incident until the Dean referred to it in his oral evidence. Of course, over the intervening period I had been on sick leave. 

Disability 

12. The Respondents accepted that Mr Mercer was "disabled" within the terms of the Disability Discrimination Act 1995, by reason of his diabetes. However, they did not accept that Mr Mercer was disabled by reason of his heart condition or depression, and put Mr Mercer to strict proof that either or both of those conditions amounted to a relevant disability. To do so, Mr Mercer must show that he "has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities" (section 1 Disability Discrimination Act 1995). As to mental impairment, he must show that it is "a clinically well recognised illness". 

The cardiac condition, diagnosed by the angiogram definitively undertaken by the consultants at the Regional Cardiac Centre (in the John Radcliffe Hospital in Oxford) means that I cannot endure normal levels of exertion and need to be protected from stress ( as recorded by Dr Sorrell). As recorded in para 16, Dr Wilson provided the necessary diagnosis that my depression was a clinically well recognised illness. 

13. Schedule 1 to the 1995 Act provides at Regulation (2) that: 

"The effect of an impairment is long term if it has lasted at least 12 months, or is likely to last at least 12 months or the rest of the life of the person affected; 

All my illnesses have now lasted for more than 12 months, and had done so by the time of Dr Sorrell’s last reports. All require regular medication even to maintain by present level of impairment. 

and that the impairment should affect his ability to carry out the "normal day-to­day activities" itemised at regulation 4. 

Regulation 6 provides that: 

"An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures have been taken to treat or correct it, is to be treated as having that effect." 

14. Section 6 of the 1995 Act imposes on an employer an obligation to make "reasonable adjustments" where the employer's "arrangements" place the disabled worker " at a substantial disadvantage in comparison with persons who are not disabled".      

 In the ‘climate of fear’ described by my two witnesses, my conditions required that special efforts be undertaken to protect me from stress. 

15. As recorded above, the Respondents did not accept that Mr Mercer was disabled within the terms of the 1995 Act, in respect of his heart condition and his depression. We did not conduct a separate Preliminary Hearing to consider these issues, but reminded the parties at the outset that we would determine these issues on evidence heard during the course of the substantive hearing. Mr Mercer had not prepared any formal evidence in support of his contention that he was disabled by the heart condition or the depression: nor did he call any medical evidence. He did however give oral evidence about his medical history, and referred us to the reports in the documents from his own GP, from the Respondents' Occupational Health Adviser, Dr Sorrell, and from a Consultant Psychiatrist, Mr Wilson.

The intention, agreed by both parties in mid 2003, was that a second opinion (in the case of the OU against the first opinion from Dr Wilson, their own psychiatrist) would be obtained. Shoosmiths insisted on making the arrangements for this but, despite the year that elapsed before the hearing, they delayed these arrangements (whether deliberately or not) until the requisite consultation was finally booked for the week after the hearing; which was clearly unacceptable. Even so, this should not have affected the outcome since the requisite psychiatric opinion, meeting the terms of the Act (not least, in conjunction with the reports of Dr Sorrell, covering a period of more than 12 months) had already been obtained from the OU’s own consultant Dr Wilson (doc 187). Thus, it is clear that, backed up by the OU’s own doctor’s reports (docs 61, 124, 129, 158,174,198) as well as transcripts (docs 188, 237) and (unnumbered) notes, there was considerable formal evidence presented in support of my contentions. 

16. Mr Mercer was receiving treatment from his GP for all three conditions: the diabetes, the heart condition and the depression. Mr Mercer gave oral evidence to the effect that the pressures that he was subjected to at work were exacerbating all three conditions. However, there was no direct medical evidence available for cross-examination on those issues. In his letter of 7 November 2002 to Dr Ellis of the USS Pension Scheme Limited, Dr Sorrell says: 

"I have been supporting Mr Mercer and seeing him on a regular basis since November 2000 and I feel that it is extremely unlikely that he would be fit enough to return to his substantive post, even if major adjustments were made including part-time working.

"The issues causing the major stress at work are intractable and I do not see them as being resolvable. Extra stress of course does exacerbate his angina. It is therefore, after exploring every avenue, that I feel it is reasonable to put up his case to you for consideration of premature retirement on the grounds of ill health and I would support his application." 

Dr Wilson's psychiatric report of 25 September 2002 records that Mr Mercer's depression was a recognised condition.

In fact there was considerable medical evidence available, ranging from Dr Sorrell’s reports over the period 2000- 2002 and Dr Wilson’s report towards the end of this period; along with reports from my own GP. It should be remembered that, as reported in the Interlocutory Order, the Tribunal itself refused my application for Dr Sorrell, the most relevant medical authority, to be asked to attend so that he could have been cross-examined as the Tribunal now seem to have required. Dr Sorrell’s report to USS in fact came after a year of his unsuccessfully attempting to persuade OUBS management to make even the smallest ‘reasonable adjustments’; as his regular reports (docs 61, 124, 129, 158,174,198) and (unnumbered) notes showed. His key statement that “The issues causing the major stress at work are intractable and I do not see them as being resolvable” relates (as his earlier reports and the transcripts of the key meetings clearly show) not to the intractibility of myself, or my condition, but to that of OUBS management who had steadfastly ignored his requests to make reasonable adjustments. 

 

17. Mr Mercer was off sick from work from November 2001 until his resignation on 4 February 2003. He claims to have been mildly agoraphobic, and to find it difficult to make long journeys. Although he had been an avid writer, he was now obsessed about this case and found difficulty in sleeping or undertaking research or writing. He was learning to live with his conditions. 'He had no hobbies; he spent all his time dealing with this case. He walked on a treadmill for two miles a day and attended the Cardiac Clinic at Milton Keynes Hospital every three to six months. 

18. Mr Mercer's evidence on the disability issue centres around his restricted ability to work. He gave little evidence about the impairment of day-to-day activities. A further difficulty is that all three conditions are currently being treated, and regulation 6 requires that the Tribunal must consider what might be the outcome, if there had been no treatment. Clearly, it is understood and agreed that the non­treatment of the diabetic condition could well result in death. But there was no evidence as to the effect of non-treatment in the case of either the cardiac condition or Mr Mercer's depression.

In terms of the impairment of my day to day activities I clearly pointed the Tribunal to the medical report from Dr Wilson, and especially those from Dr Sorrel, which made it clear that my day to day working was severely impaired. Indeed, the quotes in para 16 quite clearly show that the impact was such that premature retirement on the grounds of ill health was ultimately necessary. It should be noted that my severely deteriorated condition of health held even where I was under treatment. It does not indicate, it is true, what might have happened if my treatment was discontinued. On the other hand, it seems a perverse reading of the law to suggest that my health might have improved if the treatment were stopped. 

19. In Woodrup -v- London Borough of Southwark [2003] IRLR 111, the Court of Appeal held that:

"In any deduced effects case of the present sort, the claimant should be required to prove his or her alleged disability with some particularity. Ordinarily, one would expect clear medical evidence to be necessary. Those seeking to invoke the peculiarly benign doctrine under paragraph 6 should not readily expect to be indulged by the Tribunal of fact."

In the case of Woodrup v London Borough of Southwark the claimant was not suffering adverse effects but claimed that these might exist if she discontinued treatment. This is in no way comparable with my own position where the adverse effects existed even whilst treatment was under way. 

20. There is clear evidence that Mr Mercer has been ill and suffers from three distinct conditions. It is accepted by the Respondents and by the Tribunal that the diabetes amounts to a disability within the terms of the 1995 Act. But the Respondents do not accept that Mr Mercer is disabled for the purposes of the 1995 Act in the case of his heart condition or his depression. We must therefore look to Mr Mercer to satisfy us on the balance of probability, and on direct medical evidence, that he is disabled within the terms set out in schedule 1 of the 1995 Act. Mr Mercer has not called the appropriate evidence and accordingly we can only conclude that we are not satisfied that he is disabled with regard to his heart condition or his depression.

As described above, in relation to paras 15-19, there is in fact significant evidence that I am disabled within the terms of the Act; in terms of cardiac condition and mental health as well as diabetes – all of which are adversely affected by stress. To claim otherwise would be to misinterpret the conditions set by the Act. Again, it was the Tribunal itself who refused my request to call Dr Sorrell so that he could be cross-examined as it now appear they would have wished.