[2020] DESTROYED
IN
COURT
9205 Tribunal – Review Decision
[This is the, not unexpected, decision by the Tribunal; in response to my asking for a review. Needless to say, they said that, despite all the obvious mistakes, they were right!]
Case Number: 1200747/2003
PROMULGATED ON 23 September 2004
THE EMPLOYMENT TRIBUNALS
BETWEEN
Applicant Respondent
Dr D S Mercer AND The Open University
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT: Bedford ON: 26 & 28 July 2004 (Review Hearing)
CHAIRMAN: Mr P Robjant MEMBERS: Mr S Orman, Mr V King
REPRESENTATION
For the Applicant: In Person
For the Respondent: Mr C Bourne - Counsel
RESERVED DECISION ON AN APPLICATION FOR A REVIEW
The unanimous reserved decision of the Tribunal is that:
(1) The Application for a Review succeeds to the extent set out in the extended reasons below, but otherwise the Tribunal confirms the decision promulgated on 22 April 2004.
(2) On the Application of the Applicant, the title of the Applicant is amended from Mr D S Mercer to Doctor D S Mercer.
EXTENDED REASONS
1. On 22 April 2004 the Tribunal promulgated its primary, unanimous, decision that Dr Mercer's claim set out in his Originating Application presented on 1 May 2003 failed.
2. On 27 April the Tribunal received from Dr Mercer a letter of 26 April (comprising 11 pages) requesting a Review of the decision promulgated by the Tribunal on 22 April. Subsequently, the Tribunal received Dr Mercer's letter of 4 May (headed "supplemental"), consisting of 7 pages. Further, similar, documents were received, and in all the Tribunal received two 11 page documents and three 7 page documents from Dr Mercer.
3. On 7 May 2004 the Tribunal wrote to Dr Mercer to ask him to clarify whether some of those documents were duplicates, as the Tribunal could not ascertain this for itself without confirmation. Nor could the Tribunal consider Dr Mercer's Application for a Review until it was clear which of the five documents were to be considered by the Tribunal.
4. By an e-mail dated 11 May, Dr Mercer confirmed that the documents which he asked the Tribunal to consider were the first (11 pages) request for Review of 26 April and the second supplemental document (7 pages) of 4 May.
5. In the meantime, copies of these documents were sent to the Respondent for comment. The Respondent's solicitors wrote to the Tribunal by fax, with a detailed response to the Applicant's letter of 26 April.
6. On 14 May the Tribunal wrote to the parties, directing that the matter be relisted before the same Tribunal for consideration of Dr Mercer's Application for a Review (under Rule 13). Both parties might make written or oral submissions at the hearing, but oral evidence was not to be heard. The Tribunal would determine at the hearing whether or not the decision promulgated on 22 April 2004 should be reviewed. If the Tribunal decided to Review, directions would be given for a further hearing, at which evidence may be called, if the Tribunal were not able to resolve the Application for a Review at the first hearing. That letter incorporated a copy of the provisions of Rule 13 for the assistance of Dr Mercer.
7. On 14 May the Tribunal wrote to the Respondent's solicitors with a copy of Dr Mercer's e-mail of 11 May, and of the further letter of 4 May. On 28 May the Respondent's solicitors wrote to object to Dr Mercer's Application for a Review, on the grounds that his letters merely restated his claim. Dr Mercer had identified no "procedural mishaps" which might give rise to a case for a Review under Rule 13(1)(e).
8. Rule 13 at Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 provides that a Tribunal shall have the power to review its decision, on the Application of a party, or of its own motion, if the Applicant can establish one of the five grounds set out at Rule 13(1). The grounds which appear relevant in Dr Mercer's cases are at (1)(d) and (e), namely:
"(d) New evidence has become available since the conclusion of the hearing to which the decision relates, providing that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
(e) The interests of justice require such a Review." Rule 13(5) provides that:
"An Application for a Review may be refused by the Chairman of the Tribunal which decided the case if in his opinion it has no reasonable prospect of success." In the present case, the Chairman thought it inappropriate to exercise that power, in the light of the complexity and seriousness of the allegations now being made by Dr Mercer in his Application for a Review.
10. Rule 13(6) provides that:
"Where an Application has not been refused under paragraph (5), it should be heard by the Tribunal which decided the case" (among others).
11. Rule 13(7) provides that:
"On reviewing its decision a Tribunal may confirm the decision, or vary or revoke the decision; and if it revokes the decision, the Tribunal shall order a rehearing before either the same or a differently constituted Tribunal."
12. As indicated by the Tribunal's letter to the parties of 14 May 2004, the hearing would be to enable the Tribunal to determine whether or not the decision promulgated on 22 April should be reviewed. The parties would have the opportunity of making written or oral submissions, but oral evidence would not be heard. If the Tribunal did decide to Review, and was not able to resolve the Application for a Review at the first hearing, Directions would be given for a further hearing at which evidence might be called.
13. During the course of the Review Hearing on Monday 26 July, it was accepted by both parties that this was not a case where new evidence was relevant (Rule 13(1)(d)). Accordingly, the relevant power to review arose only under Rule 13(1)(e) - namely, "the interests if justice." When the Tribunal reserved its decision at the end of the hearing on 26 July, the Tribunal indicated that if possible it would determine the issue on the basis of the oral submissions made to us, without the need for any further hearing.
14. In their letter of 10 May, the Respondent's solicitors had drawn the Tribunal's attention to the decisions defining the scope of Rule 13(1)(e) in Flint-v-Eastern Electricity Board [1975] IRLR 277, and in Trimble-v-Supertravel Ltd [1982] IRLR 451. In Flint, Mr Justice Phillips pointed out that-the interests of justice include not only those of the Appellant, but also the interest of the other party to the claim, and the interests of the general public that there should be finality in litigation. In Trimble, the EAT identified a Review as appropriate where there had been "a procedural mishap".
15. At the outset of the hearing on 26 July the Chairman drew the attention of the parties to the decision of the EAT in Williams-v-Ferrosan Ltd [2004] IRLR 607. In that decision, the EAT took a broader view of the scope of Rule 13(1)(e). In particular, Mr Justice Hooper identified the importance of the introduction of Regulation 10 of the 2001 Rules, which provides that "the overriding objective of the Rules ... is to enable Tribunals to deal with cases justly", which includes saving expense and ensuring that the case is dealt with expeditiously and fairly.
16. But, we have borne in mind, that however broad might be the interpretation of Rule 13(1)(e) in Williams, where there are issues of law, or where allegations are made of bias, prejudice, or improper behaviour by the Tribunal, these are all matters proper for an appeal to the Employment Appeal Tribunal, rather than a Review Application to the original Tribunal itself.
17. At the Review Hearing, Dr Mercer relied upon a new document (Al) identified as "Record of David Mercer's `oral' response to the Review." Dr Mercer used this document to summarise the grounds of his application for a Review, and as the basis of his oral submissions to us. The hearing commenced just after 10.30 a.m., and Dr Mercer's submissions continued until approximately 2.30 p.m. Mr Bourne made oral submissions on behalf of the Respondent, over a further hour, leaving Dr Mercer with just under 20 minutes to reply, the hearing ending at 3.58 p.m., when the Tribunal reserved its decision.
18. During the course of the parties' submissions, Dr Mercer made clear that his primary allegation was that the Tribunal had been prejudiced and incompetent, and had come to the wrong conclusion. The Tribunal's decision was "flawed". Such issues of conduct are for the Employment Appeal Tribunal to determine. However, we identified during the course of the hearing a number of instances of mistake on the Tribunal's part, or where the Tribunal had been insufficiently explicit. We have thought it right, in the interests of justice, that we should correct such errors or omissions. Such corrections are set out in our findings below, together with our conclusion as to the effect of those findings on the primary decision promulgated on 22 April.
19. We have set out our comments below, paragraph by paragraph, by reference to the decision promulgated on 22 April 2004, and Dr Mercer's comment on that decision in his response in document Al.
20. Our conclusions are as follows.
20.1 Page 1 - The role of the Tribunal in allocating sufficient time for the hearing, and in seeking to ensure that the matter was heard within the time allotted, are matters for the Employment Appeal Tribunal. A six-day listing had been agreed with the parties when Dr Mercer was legally represented. The identification of the core bundle of documents is dealt with at paragraphs 5 and 6 of the primary decision. The extent of Mr Orman's involvement with the Open University as a student and a Consultant had been explained to the parties at the outset of the hearing on 25 February. Mr Orman had confirmed that he had had no connection with the Business School: neither party had any objection to Mr Orman continuing as a member of the Tribunal.
20.2 Errors of omission - The three areas identified by Dr Mercer as being omitted by the Tribunal from their formal decision relate to Dr Mercer's claims of breakdown of trust and confidence, excessive workload and bullying. These issues are dealt with in our summary of the evidence, but not in any great detail, because we concluded that Dr Mercer had not made out his case on these issues, and that, in any event, the real reason for Dr Mercer's leaving is related to the early retirement issue rather than anything else. We have dealt with these issues at the conclusion of these findings.
20.3 Paragraph 7 - the tapes - The Respondent's Counsel, Mr Bourne, had handed the tapes directly to the Tribunal, and had asked the Tribunal to listen to the tapes. We were unaware of any agreement between Dr Mercer and Mr Bourne, and in any event Dr Mercer raised no objection to our receiving and listening to the tapes. It was agreed by both parties that the Tribunal would utilise the afternoon of Friday 27 February to listen to the tapes and read the relevant documents. We had transcripts of the tapes in the bundle of documents. Mr Bourne had introduced the tapes at the commencement of the hearing at 27 February. Dr Mercer had not made any request for any further access to them at that stage. It is implicit in Dr Mercer's objection at this point, that he is suggesting that the Respondent has altered the tapes in some way - no such allegation was made at the time, and in any event the Tribunal find it difficult to see how such a forgery could have been undertaken by the Respondent's Counsel, or why. We confirm our conclusions from our listening to the tapes.
20.4 Paragraph 9 - Protected Disclosures - Both parties are agreed that the incident referred to at paragraph 9(vii) was not at the two Centres meeting, but at the OUBS Workshop on 13 September. Accordingly, we amend this paragraph to read:
"(vii) An incident at the OUBS Workshop on 13 September 2001.
At paragraph 10, Dr Mercer's summary is incorrect: we found only that "any of the incidents referred to above could amount to a protected disclosure." Our decision goes on to point out that:
"it is for Dr Mercer to satisfy us he was discriminated against, on such grounds."
We did not find any "subsequent discrimination." We comment on Dr Mercer's case at paragraphs 27 to 30. To clarify the Tribunal's findings we amend the decision by inserting a new paragraph 27A as follows:
"27A - Notwithstanding the evidence of Dr Mercer's witnesses, Mr Plath and Miss Vernon, on balance, having considered the evidence of all of the witnesses, we could make no finding that Dr Mercer had been bullied, or had suffered any discrimination, whether on the grounds of any protected disclosure, or his disability."
20.5 Disability - It is common ground that Dr Wilson recorded in his report of 25 September 2002 (at Page 784) that Dr Mercer's depression was a "clinically well-recognised illness." However, the onus was on Dr Mercer to establish that there had been "a substantial and long-term adverse effect on his ability to carry-out normal day to day activities." Dr Mercer did not satisfy us on that issue: and it is noted that whilst Dr Wilson acknowledges that the condition was "well-recognised", he also remarks (on the same page) that he "did not find Dr Mercer particularly depressed." In paragraph 13 Dr Mercer refers to "the fact that my illness had rendered me wholly unable to carry out my duties at the OUBS": but he did not satisfy us (as Regulation 4 requires) that the impairment affected his ability to carry-out "normal day to day activities." Dr Wilson in his report of 25 September 2002 (page 785) suggests three possible solutions to Dr Mercer's dilemma. These are:
(1) Returning to his original post.
(2) Early retirement
(3) A compromise agreement relating to study leave.
However, whilst these solutions were endorsed by Dr Sorrell in his subsequent report of 27 September 2003, Dr Wilson himself accepts that none of the three suggestions is entirely without difficulty. Dr Wilson records that there might be difficulties over personality clashes, and that early retirement would mean that Dr Mercer "would probably suffer from a severe bereavement reaction and would feel that he had been out manoeuvred by the Open University"; The third option would depend on both parties reaching agreement.
The evidence showed that the first option was not practicable, mainly because of Dr Mercer's ill health and his poor relationship with The Dean. The parties were negotiating to find a compromise but had failed to do so: and whilst initially it was thought unlikely that early medical retirement would be granted, in the event that. was the basis on which Dr Mercer's employment was terminated. Two months later, Dr Sorrell was writing to the Pension Scheme in the terms recorded at paragraph 16 of our decision.
20.6 The reasons for our refusal of Dr Mercer's Application for a Witness Order for the attendance of Dr Sorrell - These are set out in the Interlocutory Order also promulgated on 22 April, which reflects the oral judgement given on that Application on 26 February.
20.7 THE TRIBUNAL'S FINDINGS OF FACT:
N.B. The numbering below from 26.2 to 26.28 follows that of the primary decision.
26.2 We acknowledge that not every detailed finding of fact has been recorded but we are satisfied that we have recorded the facts which are pertinent to our decision. The events to which Dr Mercer refers here occurred in 1989.
26.5 Both Dr Mercer and the Respondent have drawn our attention to the document at page 244 of the bundle, which is a memorandum from Dr Mercer to Alan Lawton, dated 16 June 1999, which reports the diagnosis of Angina. The memorandum records:
"Although I still have a relatively high workload, this is largely in terms of writing (and chairing easy-to-manage courses) which I find very relaxing."
Dr Mercer contrasts the situation of the previous year when he was "very highly stressed." He confirms that "I do not think that you need make any special arrangements for me." We accept that that memorandum was overlooked by the Tribunal, and paragraph 26.5 should therefore be amended to read:
"In June 1999 Dr Mercer's Angina was diagnosed, and reported to his Line Manager, Alan Lawton, by memorandum of 16 June. Dr Mercer reassured Mr Lawton that this should "not cause major problems" and that the University need not "make any special arrangements for me."
This correction is not material to our decision: but the memorandum indicates that Dr Mercer did not think that any "reasonable adjustments" were required at that time.
26.7 The statement that "David M gave me sight of a file..." does not mean that the file was read. We confirm our findings at paragraph 26.7. No member of the Tribunal can remember any specific request from Dr Mercer to report any "perversion of the course of justice" to the CPS. We accept that Dr Mercer made a number of allegations against Officers of the University, attacking their integrity and making a number of allegations of misconduct. We are satisfied that had a formal and explicit Application been made by Dr Mercer, it would have both been recorded in our notes and would have remained in our recollection of the evidence. We accept that Dr Mercer may have made some comment to the effect that some aspect of the Respondent's conduct should be reported for prosecution: Dr Mercer made a number of asides during the course of the hearing, none of which would have been recorded as they appeared irrelevant at the time. It is now clear that Dr Mercer places some weight on the alleged criminal activities of the Respondent and their witnesses. The Tribunal has no record of any formal Application by Dr Mercer for such a report to be made to the CPS; had such an application been made to us at the time of the hearing, it would have been addressed.
We can see no reason at this point to amend our decision on the basis of such allegations.
26.8 This paragraph must be amended by substituting "Mr Kay" for "the Respondent." After "Angina" there should be added:
"(which he had first reported to Alan Lawton in June 1999)."
26.12 We accept that we have misread the evidence on this point and that paragraph 26.12 should be substituted as follows:
"Dr Mercer had been surprised that he had not been shortlisted ..."
However, this amendment does not affect our substantive decision.
26.14 These are issues of fact where we have made findings that Dr Mercer does not agree with. The same applies to paragraph 26.16.
26.17 Both parties are agreed that the reference to 24 October is incorrect. Paragraph 26.17 should read:
"A newly appointed Professor, David Parker, attended the OUBS Workshop on 13 September 2001.... etc."
This does not affect our decision.
26.24 It was agreed between the parties that any conflict on 26 July 2002 was face to face and not by telephone. We delete "telephone" in line two. We do not think that anything turns on this. We note Dr Mercer's objection to the reference to his "preparing a book." Dr Mercer now says that he was intending to prepare a series of papers. It is the unanimous recollection of the members of the Tribunal that the reference was to a "book." However, again, we do not think that our decision turns on this point. These paragraphs simply record the progress of continuing discussions between the parties on the study-leave issue. Dr Lawton records (page 781) that Dr Mercer was planning a "large project”
26.27 We were not aware that the USS Form had been submitted by .Miss Stocks, as Dr Mercer now tells us. It is now clear from a perusal of the copy of that Form on pages 808 and 809 that Dr Mercer is correct. However, it seems that whilst the Tribunal was directed to Dr Sorrell's report supporting this Application (pages 810 and 811), the two preceding pages in the bundle were not drawn to our attention at the original hearing. We accept that this documentary evidence cannot now be found to be "new evidence" in accordance with Rule 13(1)(d). But we do think that it is in the interests of justice that we should record our view, in the light of that evidence, that whilst Miss Stocks had prepared the "employer's report" form, and must therefore have been found to have been aware of the Application, she was nonetheless surprised when the early retirement was granted. We do not think that there is any need for paragraph 26.27 to be amended.
26.28 The date reference in this paragraph is wrong: the letter referred to is that of 19 November 2002 (page 813) which reads:
"Dear David,
I understand that you have applied for ill-health retirement and I would be grateful if you could please confirm that 30 November 2002 would be an appropriate date for this to take effect."
Dr Mercer maintained that this letter was a direct dismissal. The Chairman took the view that this might be a difficult argument for Dr Mercer to sustain. Accordingly, the Chairman drew Dr Mercer's attention to the letter and spelt out that the Chairman's provisional view was that that letter was not a letter of dismissal. The Chairman invited Dr Mercer to tell the Tribunal how else he might interpret the letter of 19 November, if it were found not to be an explicit dismissal. In this discussion, Dr Mercer argued that if the document was not a dismissal letter it was nonetheless (as he now puts it) a "threat of dismissal."
Paragraph 26.28 reflects this discussion. The date of 21 November in paragraphs 26.27, 26.28, 26.29 and 30 should be amended to read ,19th" November.
ERRORS AND OMISSIONS
21. In so far as we have failed to give a full explanation of our reasoning (if that be the case), we add the following paragraph as paragraph 47A:
"(1) Dr Mercer has failed to make out his case that there was a breakdown in trust and confidence between himself and his employer, which was the responsibility of the employer. In so far as there were difficulties in the relationship, we have found that it was Dr Mercer who was responsible for such breakdown.
(2) Although Dr Mercer has complained of an excessive workload, this state of affairs has changed over time. In his memorandum to Alan Lawton of 16 June 1999, Dr Mercer records that his "relatively high workload ... is largely in terms of writing ... which I find very relaxing."
(3) In his discussion with Dr Wilson, Dr Mercer "agrees that he is a workaholic" (page 783). In any event, there was no excessive workload for over a year before Dr Mercer's resignation in February 2003, quite simply because he was off sick.
(4) We have heard extensive evidence from Dr Mercer that he was bullied. The evidence of his own witnesses is slight. The evidence that we have heard overall does not make out the claim of bullying made by Dr Mercer. Indeed, some evidence (such as the recorded meeting with the Dean) suggests that it was Dr Mercer who was the bully.
CONCLUSIONS
22. During the course of the Review Hearing on 26 July 2004, Dr Mercer cited as a further example of the Tribunal's prejudice and incompetence, the Tribunal's failure to take up the issue of Mr Bourne's secret communication during the course of the evidence of Miss Stock by a series of coughs. The Chairman asked Dr Mercer whether he had made a complaint of that conduct at the time: Dr Mercer confirmed that he had not done so, and this entirely coincides with the Tribunal's recollection (or rather, lack of recollection) on this issue. In his submissions to the Tribunal on 26 July, Mr Bourne acknowledged that if he had coughed at all during Miss Stock's evidence, it would have been at a suitable break in her oral evidence. He asked that the Tribunal consider and make a finding on Dr Mercer's allegation. We found the allegation to be extraordinary. It certainly was not raised at the point that Dr Mercer now says it occurred, and, without very clear evidence the Tribunal would be perverse in accepting that there was any truth in Dr Mercer's allegation. But, we are satisfied, that Dr Mercer does not believe this allegation to be fanciful.
23. Dr Mercer has made clear that he regards the Tribunal's decision as flawed and the Tribunal itself as prejudiced. These are issues for the Employment Appeal Tribunal: we cannot deal with them in an Application for a Review.
24. These extended reasons have attempted to deal with all of the relevant points made in Dr Mercer's submission on 26 July. However, where issues are plainly disputes on facts, or issues as to the conduct of the Tribunal which are outside the scope of a Review, we have on the whole made no comment.
25. At the outset of his submission, Dr Mercer identified "an unexpectedly large number of errors." On examination, such "errors" consist, on the whole, of allegations which are issues for appeal, and disputes as to evidence, where the Tribunal's finding contradicts Dr Mercer's own assertion.
26. We do accept that there are a number of errors of detail, some arising out of the date of meetings or documents. So far as possible, we have identified these errors. We have then gone on to correct them.
27. We formally record that the Application for a Review is granted, and the extended reasons are amended to incorporate the amendments identified in bold in this decision.
28. Nonetheless, having considered in each case whether the error was of a significance which would affect our substantive decision, we have come to the conclusion that our original decision is nonetheless correct. We therefore confirm the decision and extended reasons promulgated on 22 April 2004, subject to the amendments to the extended reasons shown in bold in this decision.
29. During the course of the hearing before us Dr Mercer complained that he was being referred to as Mr Mercer rather than Dr Mercer. The reason for that is straightforward. Dr Mercer's solicitors submitted his Application to the Tribunal on 1 May 2003, describing him simply as Mr. It is understood that Dr Mercer obtained his PhD in October 2003. He had not made any Application to amend the title of this action. Now that Dr Mercer has raised the issue, the Tribunal directs that his title (and the title of the action) be amended accordingly to Dr D S Mercer.
DECISION SENT TO THE PARTIES ON
23 September 2004
AND ENTERED IN THE REGISTER
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