DESTROYED IN COURT

0334 EAT1 - Employment Appeal Tribunal – Application

[Having failed at the review, I continued by – once more unsuccessfully - taking my appeal to the final ‘court’] 

GROUNDS UPON WHICH THIS APPEAL IS BROUGHT SUMMARY OF MY CASE 

As this was a complex case (with more than 240 referenced documents in support), comprising a significant number of separate issues (which were detailed in 130 separate paragraphs in my statement alone) – at least three of the most important areas of the claim were totally ignored the Tribunal (and, of the 77 paragraphs which were covered in its Extended Reasons document, no less that 55 contained significant errors) - I believe that it will help if I set the context with a quick overview of the main points: 

CONSTRUCTIVE DISMISSAL 

Clearly the whole case had to start with proof of constructive dismissal. One approach to this (adopted by the Tribunal) was to examine whether there was a ‘repudiatory anticipatory breach of contract’. In the hearing, I claimed, quoting legal precedent, that this occurred in terms of the OU's repeated refusal to withdraw the ‘threat of dismissal’ embodied in its false claim that I had retired [page 834[1]]. 

On the other hand, it could also have been one of the last of a series of incidents which justified leaving, as I also claimed (but the Tribunal neglected to consider). Here, the evidence, from the large volume of documents in this case, showed that there were a significant number of different situations where the ‘straws’ progressively built up until the final one resulted in constructive dismissal. These situations included:
 

Breach of Contract Breakdown in Trust 

Causing Stress by: Excessive Workload and Bullying 

Discrimination on the Grounds of: Whistleblowing

Disability
 

BREACH OF CONTRACT - The Open University Personnel Department (in the form of the manager responsible, Paul Dixon) made a binding oral commitment/contract - on behalf of the VC (in essence by orally reporting what she had decided, in order to settle my 2002 formal grievance) - to the effect that I would be allowed to take the 3½ years of study leave owed to me. As agreed by the Dean under cross-examination, this agreement was supported in writing by Prof. Thompson's report [page 621] of the agreement and Prof Bassindale's email [page 639] instructing the OUBS Dean to implement this. Whilst he also admitted, under cross­-examination, that he was fully aware of what was meant by the documentation, at the time the Dean purposely chose to ignore this and accordingly this binding agreement was never implemented by OUBS management; hence causing the breach of contract. Indeed the report to me by his HR consultant, Katie Stocks, of Prof. Bassindale’s instruction was grossly misleading; by omitting the main recommendation and falsifying the other one – which unnecessarily led to a fruitless six months of legal wrangling.

BREAKDOWN IN TRUST - although not taken into consideration by the Tribunal, the progressively malicious behaviour of the Dean, most overtly shown in the bullying described by both my witnesses, who under cross-examination described the ‘climate of fear’ which applied across OUBS, led to my belief (and that of OU counsel in his summing up at the hearing) that there had been a serious breakdown of trust and confidence. The degree of this breakdown of trust and confidence was also definitively shown by a number of the disclosed documents; most of all by the Dean's email of 11^th October 2001 [pages 558-559], which the Tribunal chose not to comment on.

EXCESSIVE WORKLOAD - although not addressed by the Tribunal, the grossly excessive level of my workload, at five times my normal level, was definitively covered in paragraph 51 of my statement to the hearing; and was compounded by the failure of OUBS management to even provide a line manager who might be able to offer a remedy (reported in paragraph 52).
 

BULLYING - this was a factor, again ignored by the tribunal in making its decisions, which pervaded all aspects of my case. It was definitively established by my two, witnesses (under intense cross-examination, without rebuttal by any other witnesses not even adequately by the Dean), who generally reported the ‘climate of fear’ within OUBS, and in particular the Dean's humiliating criticism of me in front of other staff. 

WHISTLEBLOWING - the Tribunal accepted (para 9) that there were seven incidents of protected disclosure. In this context, the email of 11 October 2001 [pages 558-559] was the central piece of evidence which most clearly indicated the Dean's motivations and intentions arising from these. In two short pages it demonstrated his extreme reaction (declaring my behaviour to be ‘poisonous’ and ‘questionable as to mental state’) to what, in court, he said he thought was my whistle-blowing with regard to Prof. David Parker; though the written evidence suggested that it was in fact due to another protected disclosure - my complaint to the AUT in October 2001 which directly led to the email in question. In that October email he clearly described his strategic intent as being to `shut me up'. Even so, the most important discrimination came in the form of the Dean's bullying described by my two witnesses; a claim never rebutted by the OU. The Tribunal did not address any of the crucial implications of this email, or of my witnesses' statements, or indeed the claim of bullying, in their considerations. 

DISABILITY - the Dean deliberately chose to ignore the demands of Dr Sorrell, the OU's own doctor, to make the necessary reasonable adjustments; not least to resolve the ongoing dispute - which the Dean could have done at any time. The Tribunal did not address these facts, since – without informing me of the fact - it specifically excluded written medical evidence.

DETAILS OF THE SIGNIFICANT LEGAL QUESTIONS POSED BY THE TRIBUNAL'S EXTENDED REASONS 

Apart from the many significant errors of fact, which I have passed to the Tribunal itself for Review (as per attached copies of my final response to the Review itself), the Tribunal (as evidenced by its `Extended Reasons') made a number of flawed judgements with respect to the law. 

a) UNDOCUMENTED PRELIMINARY HEARING 

Not least of these was the failure to formally report the Preliminary Hearing which was held in camera before the main hearing opened. At this a number of key decisions were taken which were not documented and were not even recorded as part of the `Extended Reasons'. Thus, at this earlier part of the hearing: 

i) One of the members, I believe it was Mr. AV King (the union member?), declared an interest; reporting that he had recently been employed by the Open University as a paid consultant. Against my better judgement, but accepting his declaration that he would not allow any aspects of his experience there to prejudice his judgment and under heavy pressure from the Chairman, I was obliged to accept his declaration; since the stated alternative - of a further delay (on top of the many months which had already passed) while new panel was chosen - would have caused my health to deteriorate further. In addition it would have further alienated the Chairman who - in response to the extensive pre-hearing correspondence - had already made clear his displeasure at previous disagreements between myself and the Respondent. This important fact, which the members of the Tribunal must have considered, was not however recorded; and has now become especially significant in the light of the patent prejudice which the Extended Reasons exhibit.
 

ii) I was persuaded by the chairman (para 26.28) to change my claim that the letter of 21 November 2002 effectively amounted to dismissal, to it being a `threat of dismissal' which represented an anticipatory repudiatory breach of contract (Harrison v Norwest Hoist 1985) which was never withdrawn by the OU despite my (and my solicitor's) strenuous attempts to obtain such withdrawal. The alternative, stated by the Chairman, was that otherwise the case would have been immediately dismissed. However, I never agreed that this was merely an `assumption' (as claimed in para 26.28), but insisted that it still represented a real `threat of dismissal', and as such an anticipatory repudiatory breach of contract. In fact, the Open University Business School never withdrew this threat, despite being offered a number of opportunities to do this, and indeed made the claim that I had retired in this way a central plank in their case at the hearing. 

SPECIFIC ERRORS IN CONSIDERING THE LAW 

Taking the key paragraphs individually, the main legal challenges include:

PARA 1 - the Tribunal's summary of my Application crucially omitted a number of claims which were included in the full version of my original document, including (as per the numbering of my originating application):
 

Paras 3/4 - increased, excessive workload in the face of specific instructions to the contrary from the OU doctor and bullying in meetings

Paras 5/9/10 - breach of contract with regard to my agreed study leave

Para 12 - destruction of the relationship of trust and confidence and failure in its duty of care 

These matters were not directly referred to; despite the previous agreement by the Chairman, in response to a request to update the Application in view of the disclosed evidence, that they would be dealt with as part of the evidence being considered. 

PARA 7 - much was made by the Tribunal, in its Extended Reasons, of the tape recordings made of the key meetings; in particular that on 6^th November 2001. However, the procedures relating to the introduction of these were so flawed as to suggest that they were not even formally entered into evidence. Thus, my tapes - which had not been requested by the Respondent during the disclosure process - were, against my objections, handed to the Tribunal by Respondent's counsel. This was despite the preceding agreement with him that they had only been informally loaned to him overnight on the strict condition that they were to be handed directly back to me first thing the following morning. I then was not allowed copies of these, where it had been many months since I had listened to them as part of the process of producing the transcripts (which transcripts, it was agreed by all involved, were accurate). As a result, I did not have access to these in order to rebut the claims made by Respondent’s counsel. This series of events again was unrecorded, as was any entry into the official record of evidence. 

PARA 15/16/20 - although the Tribunal had conducted the Preliminary Hearing - albeit in camera - before the start of the public hearing and this is not properly recorded, there was no mention at this or any time of, let alone agreement to, the principle that the Tribunal would "...determine these [medical] issues on evidence heard during the course of the substantive hearing." Had this been the case I would have strenuously objected to this - for the obvious reason that I had previously agreed with the Respondent’s solicitor that (following her failure to call their rebuttal second medical opinio, which should have been provided in time) the written medical evidence, especially the definitive evidence of their own medical consultant (Dr Wilson), was sufficient. However, in fact, the Tribunal specifically disallowed (contrary to Kapadia v London Borough of Lambeth) the expert written medical evidence of the OU's own medical consultant, Dr Wilson, and that of its own doctor, Dr Sorrell; both of which clearly showed that I was disabled in the terms of the Act. In any case, in view of the legal precedents this contravened, I would at the very least have addressed the issue in my written summation (enclosed) at the end of the hearing; which I certainly did not do. The same condition meant that the Tribunal did not, as I requested, consider these expert's reports in respect of para 18; and indeed did not even tell me that they were disregarding this evidence as a matter of principle. The Tribunal, further, controversially refused an Interlocutory Order asking for the OU's own doctor, Dr Sorrell, to give evidence at first hand and, under cross-examination, to answer such important new questions as were being considered by the Tribunal. At the same time, however, it forced me to agree to the release of Dr Sorrell's patient notes which Respondent's counsel thought might help their case.

It did not similarly disallow the Respondent's request for an additional witness of their own choosing (Alan Lawton) to be called during the hearing; nor did it record this fact - or that he and another late witness (Richard Wheatcroft) were never actually put on the stand once it became clear that the ‘climate of fear’ reported by my two witnesses might become a significant element of cross-examination.

In any case, as determined in Kapadia v London Borough of Lambeth, an employment tribunal should not have disregarded medical evidence; although for good reason it could have rejected it. It never gave any such good reasons when it said "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". However, even then, it did crucially report that "Dr Wilson's psychiatric report of 25 September 2002 records that Mr Mercer's depression was a recognised condition"; though, perversely, it refused to take this into account elsewhere. 

PARA 18/19 - there was clear evidence that, in addition to life-threatening diabetes which was adversely affected by the stress which would result from any harassment or overwork, I also suffered from a disabling cardiac condition (which was accepted by the OU doctor as early as 2001, and thence by OUBS management who were supposed to be monitoring my condition in this respect, and was definitively diagnosed - by angiogram - by the consultant at the Regional Cardiac Center at the John Radcliffe Hospital) along with depression, and was receiving essential (life-prolonging) treatment for all of these. However, the Tribunal perversely chose to criticise the fact that I had not proved what would happen if the treatment was withdrawn.  

Indeed, in support of their contention they inappropriately introduced the case of Woodrup v London Borough of Southwark. Moreover, the Tribunal's extraordinary omission of the fact, which was central to my case, that I was no longer able to undertake any of my normal daily academic work at the OUBS (and ultimately was accepted by USS for retirement on the grounds of ill health), and questioned whether I meet the necessary conditions of impairment, suggests a significant degree of misunderstanding/negligence on its part. 

PARA 21 - having disallowed Dr Sorrell's (and Dr Wilson's) written evidence with regard to my disabilities, the Tribunal then selectively and falsely misconstrued the statement in his letter (to USS) that "The issues causing the major stress at work are intractable and I do not see them as being resolvable" as being his view that "...no possible adjustment would have accommodated Mr Mercer's disability". In so doing they ignored the previous medical reports, over the previous year, which made it clear that the `intractability' was in fact due to the continued failure by OUBS management to undertake the reasonable actions required by the medical experts, rather than any aspect of my disabilities. All the medical experts involved agreed that reasonable adjustments were possible, and straightforward in implementation, and the Respondent specifically admits (in its unsolicited response to para, 21 of the Review) to an example of just such an easy adjustment; though even then the OUBS management did not implement this. In any case, the Tribunal did not even consider that the OU failed to undertake the requisite enquiry and assessment (as in Mid Staffordshire General Hospitals NHS Trust versus Cambridge EAT) to establish what the facts were, or why - in respect of 5(1)(b) - the respondent clearly failed to justify why it did not make the necessary adjustments.

PARA 23/24 - the Tribunal focused only on the one aspect of constructive dismissal which revolved around the single anticipatory breach of contract, the issue of the threat of dismissal, to the exclusion of this being one of the last in a series of incidents leading to a complete breakdown in trust and confidence (which was admitted in OU Counsel's closing statement at the hearing). The series of incidents ranged from bullying (and excessive workload) to breach of contract in terms of the abrogation of my rights to study leave, any one of which would also have justified a claim of constructive dismissal. 

PARA 26.7 - in accepting the Dean's evidence at face value, and by inference concluding that he was a reliable witness and I was not, the Tribunal perversely ignored the written evidence to the contrary; including his own email of 20 September 2001 (which was produced during the hearing from his own illegally held files) in which he quite clearly stated "David M gave me sight of a file which he claimed reflected his battles with David A..."; where this could only have been the dossier in question and the context shows that he must have read at least some parts of it.  

The Tribunal's crucial, unquestioning, faith in all the claims made by this key witness in chief – despite the lack of supporting evidence (and sometimes in the face of the written evidence) - was also regardless of that fact that he was shown, during the case, to have infringed criminal law; by conspiracy to pervert the course of justice, in trying to destroy the evidence in a prospective libel action, and transferring my personnel files from the OUBS database to his personal PC and preventing my access to these, in contravention of the Data Protection Act. Despite my request that the CPS be made aware of these illegal actions, they are not even mentioned in the Extended Reasons. 

PARA 26.14/26.15 - if they had not been protected by Qualified Privilege, the Tribunal's statements here would have been considered libellous. Not least, like Mr Tulitt, the Tribunal was demonstrably wrong about the key issues which Mr Tulitt maliciously put in his report; which was then republished by the Dean. As just one example, despite the facts clearly stated in my CV, Mr Tulitt falsely said "...it was clear that your career was characterised by an important feature; you had no track record of progression within organisations you had worked for...you will not effectively handle an influential level job with people management or commercial management responsibility, just as you have not done so to date after all this time." This was clearly untrue, since my CV clearly showed that not only had I progressed from Assistant Market Executive in an advertising agency to General Manager in a leading multinational in just ten years, but had actually been promoted in most of the companies for which I had worked; including within IBM and, most recently, within the OU itself. Nor did it even take into the account the fact that I was trusted by the Western Ambassadors in Ethiopia to handle the most sensitive contacts on their behalf with the President of that country. In agreeing with Mr Tulitt's comments, the Tribunal demonstrated an extraordinary degree of prejudice - which clearly pervaded its other deliberations. I had made it very clear that the libel issue was to be the subject of a separate action, and was only covered as necessary background (but not substantive evidence) in the hearing. Thus the nature of the gross errors in judgement contained in this paragraph graphically illustrate the nature of the bias against me. The wording, especially `hardly surprising' - along with the misleading claims, `a number of grievances' (where I had actually only entered one) and `fallen out with his colleagues, often to the point of threatening libel proceedings' (again, in fact on only one occasion), indicates a substantial degree of prejudice and/or negligence in considering the facts. Possibly due a lack of expertise in the field of defamation, which is also shown by its comments elsewhere (especially in para 27), the Tribunal did not explain that in republishing Mr Tulitt's libellous report the Dean had made the OU party to the libel; as the correspondence from OU Personnel, and the Dean's attempts to destroy the evidence, confirmed. The Tribunal's unfortunate excursion into this field, fatally prejudicing a proposed action in the High Court, was grossly negligent. 

PARA 26.16 - the effective dismissal of this crucial email, without due deliberation of its implications which - discussed at length in the hearing - was central to proving both the Dean's motivations and his strategy, indicates a significant degree of bias or negligence. This email, a copy of which is enclosed, was definitive in terms of establishing motives and the basis for his later actions. Even the very brief extracts quoted, without comment, by the Tribunal show a degree of on-going hostility by the Dean - at least a month after the events he claimed made him angry - which helped explain his later actions; the strategy for which he also laid out in this same email. The failure to positively comment on this definitive evidence of motives and intents is at least negligent. 

PARA 26.17 – indeed, the false reporting of crucial (but simple) facts in the case, along with many similar flaws elsewhere (including in paras 26.5, 26.23, 26.27, 31 and 32), indicate a degree of misunderstanding of the facts of the case verging on professional negligence. 

PARA 26.18 - this reports the controversial use made by the Tribunal of the audio tapes. Even so, its major error, in making the false claim that both sides had been threatening action on defamation, where it had only been the Dean who had issued such threats, suggests that the Tribunal's scrutiny was much less exact than it claimed. 

PARA 26.22 - by choosing to quote the email from Katie Stocks, rather than the original from Prof. Bassindale, the Tribunal do not fairly evidence the VC's wishes. Indeed, the Dean admitted, during the hearing, that he was aware that the Prof Bassindale's phrase "An individual's workload is at the discretion of the head of unit. if you want to see David Mercer engaged more strategically with research then you are able, if you so wish, to agree that within the school " was a device intended to honour the VC's recognition of Prof. Thompson's agreement, on her behalf, with me. 

That the Tribunal based its decision regarding the breach of contract on the crucially flawed (false and misleading) email from Katie Stocks – which supposedly (but falsely) described the authorised email from Prof. Bassindale - rather than on the original itself is at least negligent. Moreover, it ignored the fact that her false reporting of the original had led to more than six months of unnecessary legal argument. 

PARA 26.24/25/26 - the false reporting of my actions, and especially of my intentions, in this paragraph again are at best negligent; especially where these reports were specifically contradicted by the statements in my written summing up. 

PARA 26.28/29 - this statement does not indicate that this discussion took place during the preliminary hearing, and it falsely states that I had agreed to the use of the term `assumption' rather than `threat of dismissal' which I had clearly stated was my position; and was highlighted as such in my written summing up. 

PARA 27 - in view of the fact that a major part of my case was that I had "been bullied and put under unnecessary stress by Mr Kaye", and that my two witnesses had been called to support this point - and graphically testified to this effect - it is again negligent that the Tribunal did not comment further on this point, let alone decide on it as they were required to where it represented grounds for constructive dismissal (as in Hatton v Sutherland, Jones). Instead, they once more prejudicially chose to undermine my credibility as a witness, on basis of personal observations by the Dean, without any supporting evidence other than the libelous comments of the OU's discredited consultant; with whom the evidence [pages 1039-1042] showed that the Dean had conspired to defame me. Indeed, according to my expert legal advice (and as tacitly recognised by the OU itself when its management attempted to eliminate evidence of its existence), Mr Tulitt's report was indeed grossly libellous and maliciously designed to damage my professional reputation. Qualified privilege protects the Tribunal in this case, but its unqualified support for the libel - thus fatally prejudicing a separate action in the High Court - was not just unnecessary but contrary to natural justice. 

PARA 28/26.21- the transcript (which it was agreed was accurate, though the Dean's responses were muffled and those of Katie Stocks were largely inaudible) does not show me trying to contrive a future action. Indeed, I was so shocked at what was happening to me as to have difficulty in handling the current situation which was leading to my breakdown. The possibility of a future action was, accordingly, the last thing on my mind; though it clearly was an issue for the Dean who had already announced his intentions in the 11^th October 2001 email. In addition, the fact that, on the controversial tape of the 6^th November meeting, the OUBS managers - who already were aware of my `questionable mental state' - chose to ignore my genuine pleas to be allowed to finish the meeting because I was having a nervous breakdown, should not have been taken by the Tribunal as uncontrovertible evidence that nothing of this kind was actually taking place. Moreover, the Tribunal's crucially mistaken claim that I went on sick leave a week later (on 13'^h November), when in fact I went on sick leave, and started treatment for clinical depression, on 6^t" November (immediately after the meeting), indicates just how negligent was their treatment of the facts. Equally, the abundant evidence of my mental state should have also required the Tribunal itself to make allowances - reasonable adjustments - which, as is evidenced by the absence of comment, it clearly did not do. 

PARA 29 - quite simply, I had never agreed that there "had been no such specific agreement." I, and my legal advisers, were always quite clear that such an agreement existed; and, once more, my written final summary contradicted the Tribunal's a claim.
 

PARA 30/31 - again, not least in stating that my reaction was exaggerated and especially in the context of my preceding year-long dispute with the OU, the Tribunal falsely and prejudicially ascribes unworthy intentions to me and then credits the OU with beneficial actions which it actually did not take. Again this is evidence of professional bias/negligence. 

PARA 32 - although OUBS management did refer me to Dr Sorrell, they then consistently refused to implement his expert recommendations. Indeed, in their initial response to the case (para 9) the Respondent claimed that "The Respondent did not and does not believe that there were any exceptional circumstances that allowed the Applicant to be treated any differently from his peers. " Accordingly, until the Review, they chose not to present any evidence of making reasonable adjustments; nor could they, since none were made. For just one example, in the year following my breakdown I did not have a single visit from a member of my line management; even though OU guidelines called for this. That the Tribunal "...could find no evidence of the University failing to comply with any reasonable adjustment" once more indicates a level of bias or negligence.

PARA 33 - in making the statement that "we are satisfied from the evidence that that state of affairs arose entirely out of the conduct of Mr Mercer himself the Tribunal, without comment, dismissed the incontrovertible evidence of my two witnesses - as well as large amounts of the written evidence which had accumulated over the two years of the dispute. Again this shows a degree of bias bordering on professional negligence. 

PARA 34 - once again, the Tribunal - in saying that I dismissed the University's attempts to monitor my study leave - is willfully misquoting me; as is shown by the written evidence clearly contradicting this. 

PARA 36 - as discussed earlier, this had been amended to a `threat of dismissal' - though this still represented grounds for constructive dismissal - and, in any case, in ignoring my claim that this was just one of the last of a series of actions which had led to the constructive dismissal, the Tribunal did not do full justice to the claims which were contained in my summing up. 

PARA 39/46 - it might be argued that the "Respondent's failure to respond to the letters of 22 and 28 November" was not due to any discrimination, or to any act of detriment, but the Tribunal overlooked fact that - if this was the case - it inevitably meant that they were due to negligence instead; which would still have supported the claim for constructive dismissal. Had the OU chosen to withdraw its claim that I had retired, and with it the implied threat of dismissal, then (as per Harrison v Norwest Holst Group) its actions would indeed not have amounted to constructive dismissal. But, despite my clear and repeated demands for such a retraction, it never withdrew the claim. 

PARA 40 - in making this statement about my claimed intentions, the Tribunal was vitiating its decisions by linking them to irrelevant (and false) claims of a personal nature; claims which could not be true since the action clearly put me at a financial disadvantage. 

PARA 42 - the `reason' was the unilateral, and unannounced, decision by the Tribunal to only accept medical evidence presented in person. 

PARA 43 - it is true that the Sutherland v Hatton appeal suggested that "An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty." However, this is not a blanket dispensation. Not least, it tacitly assumes that the employer will then reasonably follow the recommendations of the counselling service; where, on the other hand, OUBS management signally failed to do so - despite the fact that all the medical experts had then agreed that reasonable adjustments were possible and straightforward in implementation. Indeed, following the first referral, and Dr Sorrell's requirement that my condition be monitored, in the critical months leading up to my breakdown it totally ignored the fivefold increase in my workload, which I had duly reported, and even refused to provide line management for me to report to. Even more tellingly, the Respondent specifically admits (in its unsolicited response to the Review para 21) to an example of just such an easy adjustment. In the event, far from implementing this particular reasonable adjustment, the next (and only) response from OUBS was the letter claiming that I had retired. In any case, the Tribunal did not even consider that the OU did not undertake the requisite enquiry and assessment (as in Mid Staffordshire General Hospitals NHS Trust versus Cambridge EAT) to establish what the facts were, or why - in respect of 5(1)(b) - the respondent clearly failed to justify why it did not make the necessary adjustments. 

PARA 44/45/46 - the Tribunal's interpretation of the law, which in effect seems to disallow almost all applications to Tribunals, must be seen as perversely negligent at best. It denies the possibility, which has been set by a number of precedents, of the constructive dismissal being the result of a series of such actions.

MISSING DECISIONS 

One of the most obvious flaws in the process was the way that the Tribunal positively ignored, or at least chose not to comment on, three of the four areas which might have contributed to the series of incidents justifying a claim of constructive dismissal; ‘Bullying’, ‘Breakdown in Trust and Confidence’ and ‘Excessive Workload’.

Thus. the Tribunal did not make any adequate reference to the ‘Bullying’ which represented a major element of my Application, and by itself justified the claim of constructive dismissal, and did not make the necessary determination about this (Logan v Commissioners of Customs & Excise). Although this was even noted in para 1b, as a central claim, this is never thereafter referred to with any degree of substance. This was despite the fact that both my witnesses, under cross examination, graphically described a climate of fear within the OUBS where - as a result of my whistle-­blowing activities on behalf of the staff - I was the chief recipient of regular bullying by the Dean. The topic having been raised by my two witnesses, the two OU witnesses who could have commented on this (and reportedly would have commented adversely, thus supporting my claim) were not called – though this is unreported. In addition, ‘Breakdown in Trust and Confidence’, which was one reason for the large amount of evidence and was even supported by OU counsel in his closing statement, was also not addressed by the Tribunal anywhere in the Extended Reasons. Finally, the Tribunal also did not address the excessive level of the workload which was included in my Application, and definitively covered in paragraph 51 of my own statement to the hearing. This was compounded by the failure of OUBS management to even provide a line manager who might be able to offer a remedy (reported in paragraph 52 of my statement). No mention of this was made in the Extended Reasons, even though it has been seen to justify constructive dismissal;

FLAWED DECISION-MAKING & BIAS 

Whilst it is not my role to speculate, I believe a reason for the very high level of factual errors may have been the initial misjudgement, by both parties before the Tribunal, of the time necessary for the hearing; since the main focus throughout the latter part of the hearing was on ways to shorten the proceedings rather than to serve justice. Apart from limiting the evidence considered, this seems at times to have meant that the evidence actually considered may sometimes have been used to confirm pre-judgments in the single reading which was all that time allowed. Whatever the reason, it is clear from the high level of factual errors that the approach did not handle the complexities of the evidence well.

The lack of time may also have not allowed adequate consideration of the very different academic environment. Further, counter-intuitively, the presence on the Tribunal of a consultant who had recently worked for the Open University (OU) may actually have exacerbated. Though it had nothing to do with the facts of the case, which concerned my individual treatment, over the past few years a battle has been under way for the heart and soul of the Open University. The academics have been fighting to preserve the traditional values of the OU, and might generally have aligned themselves with me. The administration, now dominating the decisions due to its greater number of  staff and hence more ‘votes’, have taken on the ‘challenge’ of efficiency in the market economy; and might generally have supported the Dean’s more hard line approach. The Tribunal member was an OU graduate who had recently been employed by the OU as a consultant to OU admin may, therefore, have been unduly influenced by the latter aspect – even though the case was not concerned with decisions about this – and the largely commercial experience of the other members may have chimed with this; resulting in a level of prejudice somewhat akin to ‘groupthink’. The result seems to have been that the Tribunal also misconstrued my part in the OUBS academics’ struggle to maintain OUBS standards and seriously misjudged my motivations as well as my reputation as a whistle-blowing champion of those standards. 

Consequently, perhaps, the Tribunal placed an unacceptable reliance on its perceptions of the personalities/reputations involved and as a result its decisions were so biased as to be perverse. Neither these, or the Tribunal's judgment of the characters of the parties, should have been taken into account in taking the decisions it made - which were supposed to be based on factual evidence rather than prejudice. 

On the other hand, there was an obvious basis for such prejudice. The Open University probably has the best, and most valuable, image of any UK organisation. I myself spent a considerable amount of time deliberately enhancing this image. In addition, the Tribunal member with direct experience of the OU must have been as impressed by its values as I was. Against this, I was an individual deliberately vilified over a number of years by OUBS management (whose character assassination of me was continued by OU counsel, without any comment - let alone instructions to cease this - from the Chairman, throughout the hearing), who had a breakdown and was still mentally ill at the time of the Tribunal. The OU was represented by a high-powered team of lawyers, led by expert counsel. Due to lack of funds, I had to represent myself; despite my mental impairment which still demanded behaviour modifying drugs - though no allowance was made for this. Whatever the reasons for the prejudice it should not have been allowed to interfere with the Tribunal's judgment: 

Within the hearing itself, the degree of bias was most clearly evidenced by the balance of the interim decisions, which was exclusively in favour of the Respondent. Thus, even though I attempted to introduce just a few key items: 

a) The rebuttal of the claims of sexual harassment made against me.

b) The emails earlier in the chain leading up to the Dean's email of 11 October 2001, which proved that the disputed context actually was my introduction of the AUT and threat of legal action.
c) An email from Alan Parkinson about his own grievance, which disproved the Dean's version of events.

d) My extracts from a range of dictionaries which proved that Dr Sorrell's use of the phrase `making a case' could not be interpreted as an application.

all of these applications were refused. 

On the other hand, when - during the hearing - the OU introduced a number of contentious items: 

e) a further witness, Alan Lawton, though in the event he was not called by them
f) my tapes of the conferences, which its counsel had borrowed and then handed over without my permission; and which were even then not correctly entered into evidence
g) twenty pages of files which had been illegally held on the Dean's own PC; and which showed some evidence of deletion (though discussion of this topic was then barred by the Tribunal). 

all of these requests were granted. 

The worst example of bias came in the arguments over the Interlocutory Order. So as to counter the evidence shown in the transcripts, OU counsel requested - against my objections - that Dr Sorrell's case notes be produced. The Tribunal granted an Interlocutory Order for this to happen. In the event, these notes did not support the OU case, but the Tribunal still quoted them as doing so and as evidence of my medical condition. As, despite all the emails exchanged, nobody had ever asked Dr Sorell himself what he thought had happened, I asked - as part of the Interlocutory Order - for him to give evidence in person. Regrettably the Tribunal refused this request and disallowed all other (written) medical evidence; though it subsequently perversely criticised me for not producing a medical expert (such as him) in person to back up the reports from the other experts. 

SUMMARY 

Apart from a negligent reading of the evidence, and despite the clear facts provided by the comprehensive written evidence, the Tribunal also failed in matters of law as follows:
 

MISPLACED FOCUS - the Tribunal's exclusive focus on the issue of a single anticipatory breach of contract, led to its failure to consider the key events as being the last in a series of incidents.
 

MISSING DECISIONS - the most serious flaw was the failure of the Tribunal to decide, or even properly address, some of the key claims included in the original application. These included:

Failure to address, or to take any necessary decisions on, the imposition of a grossly excessive workload in the face of specific instructions to the contrary by the OU doctor.

A failure to effectively deal with, or to take the necessary decisions on, the subject of the excessive bullying, not least in meetings and as part of the creation of the climate of fear described by witnesses.
 

Failure to address the specific issues at law involved in the breach of contract with regard to my agreed study leave, and instead to rely on their personal prejudice as to what a reasonable contract should have been 

Failure to tackle the destruction of the relationship of trust and confidence

Failure to consider the OU's duty of care 

PROCEDURAL FAILURES - the next category was the failure to follow the correct procedures: 

Failure to document the pre-hearing which was held in camera 

Failure to report the declaration of interest made during this pre-hearing

Failure to correctly record my change of plea made at that pre-hearing

Failure to correctly handle/document the entry of the audio tapes into evidence against my wishes 

Deciding, against established precedent and without reason, to disallow expert written medical evidence; coupled with a failure to make this known to me - but still making selective use of patient notes to support the Respondent's case 

Refusal to allow a key medical witness to be called 

Allowing late entry of evidence which had been tainted by being illegally held outside of the official database, and disallowing any review of the evidence chain having been broken 

Quoting libellous statements in support of the Respondent's case and thus abusing qualified privilege in prejudicing a separate case going to the High Court
 

MISTAKEN INTERPRETATION OF THE LAW - those elements where the Tribunal's interpretation was perverse:
 

The inappropriate requirement, including reference to Woodrup v London Borough of Southwark, that I must prove what would happen if my medical treatment was withdrawn
 

Intractability on the part of the Respondent, rather than any medical condition, being a legal basis for disallowing the possibility of any reasonable adjustment

PROFESSIONAL NEGLIGENCE/BIAS - the failure to serve natural justice by maintaining an unbiased, even­handed - balance between Applicant and Respondent:

Failure to record the breaches of criminal law, including breaches of the Data Protection Act and perverting the course of justice, indulged in by the Respondent's witness in chief 

Falsely ascribing unworthy intentions, and actions, to me 

Failure to properly comment on the key piece of evidence, the 11^th October 2001 email which was central to proving both the Dean's motivations and his strategy 

Failure to report, let alone to give any weight to, the unequivocal

 evidence of bullying reported by my two witnesses

Use of, and reliance on, the falsely misleading (Katie Stocks) version of the OU offer of settlement rather than the original (Prof. Bassindale) version.
 

Placing an unacceptable reliance on its own judgment of the personalities and reputations involved, based on ‘performance’ in the witness box in contradiction of the extensive written evidence, to the extent that - without qualified privilege - its published views might have been seen to be libelous

Along with the misplaced focus on meeting deadlines rather than serving justice by extending the time available, leading to:

Pressure on me to cut short the arguments, which resulted in the Tribunal misunderstanding the more complex issues – hence the 55 paragraphs which contained factual errors

Unwillingness to consider written evidence, so that its factual errors were not highlighted by the obvious contradictions with the written evidence

Pre-judgment of issues, looking for confirmation of prejudice rather than seeking for truth

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