DESTROYED IN COURT
9262 Tribunal – Comments on the Review Decision
[In terms of the reference to the EAT, the Tribunal set the context as follows]
“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 of 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.”
The new comments, added to their Extended Reasons, as a result of the Review covered a number of categories. In some of them amendments were made without reservation. In some amendments to the detail were made, but the related decision was unchanged (20.4, ). In some no amendment was made, though a reason was given (20.1, 20.3, 20.5, 20.6). In some of them no comment was made; presumably since it was claimed some issues were matters of interpretation of the facts. In some of them no comment was made - presumably since it was claimed they were matters of interpretation of the facts - though this ignored indisputable evidence or aspects of the law (20, 21, 23). Finally, on some the Tribunal referred the issue to the EAT, on the grounds that it was outside of its own competence.
As the Tribunal proceeded to ignore some of the fundamentally important questions posed in my documented ‘ORAL’ RESPONSE TO THE REVIEW (as recorded by the Tribunal), and a number of these touch on issues which are crucial to my case, I include the related responses which I made in that ‘Oral’ Response document.
“Para 20. This paragraph is incorrect in that, as stated in response to para 16, the only mandatory condition - that of a `recognised condition' - was clearly met. Further, the Tribunal failed to provide the necessary explanation of why they chose to disregard the other medical evidence to hand.
Para 21. Once again, this paragraph is both selective in its choice of evidence and incorrect in its analysis of that which it did consider. The evidence clearly shows that Dr Sorrell did not at any time, even when writing to USS [pages 810/811], say that no possible adjustment would have accommodated my disability, but rather that the issues at work (more specifically those under the control of OUBS management) were intractable. In any case, no comment was made concerning the OU’s failure to undertake the requisite enquiry and assessment to establish what the true facts were (as per Mid Staffordshire General Hospitals NHS Trust versus Cambridge EAT).
Further, in respect of 5(1)(b) it did not report that the Respondent failed to justify why it did not make the necessary adjustments.
In fact, as demonstrated by my email of 12th September (doc 146), far from being intransigent I had stated that "...in effect we now agree on all but a couple of relatively minor points”, an agreement stressed by Respondent's counsel in the hearing. The only sticking point then was the specific targets being unilaterally set by Angus Laing, which I - and the medical consultants - felt would pose problems for my convalescence; and which, in the light of Prof. Bassindale’s email, were irrelevant.
I am reassured that, although it was again not reported by the Tribunal, the Respondent has now agreed that Dr Wilson’s recommendations, at least, might have represented ‘reasonable adjustments’.
On the other hand, Dr Wilson further stated that he thought that retirement (the second option) was in effect a non runner, since it "would mean that Dr Mercer would probably suffer from a severe bereavement reaction "; as indeed I did and this extended my illness by more than a year. In respect of the option quoted by the Respondent he actually wrote "the third possibility, and I do not know if this is an option, would be for a compromise to be reached over Dr Mercer's study leave, so that he could be given say eighteen months of his study leave with a specific purpose of doing his research."
However, it was also not reported that, far from implementing this particular reasonable adjustment, the next (and only) response from OUBS was the letter claiming that I had retired.
Para 23. The Respondent's overall tacit acceptance, and actual acceptance by its counsel’s in his summing up, of the fact that ‘trust and confidence’ had actually broken down in early 2003, is significant in that such `breakdown in trust and confidence' is another of the series of events which led up to the constructive dismissal. Once more, though, this is unrecorded.”
“20.7 THE TRIBUNAL'S FINDINGS OF FACT:
N.B. The numbering below from 26.1 to 26.28 follows that of the primary decision.”
“20.1 Page 1 - …. 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.”
One obvious reason for the alleged bias of the Tribunal, which is one reason it has suggested that a number of decisions can only be made by the EAT, would be Mr Orman’s declared interest. It is true that – as a bona-fide member of the Tribunal – I accepted that he would ensure that there was no bias, but this answer - that he had no connection with the Business School - is ingenuous for, as the Chairman frequently insisted, the case was against the Open University itself.
“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.”
Rather than deciding ‘the real reason for my leaving’, and limiting its decisions to that, the Tribunal should have properly considered what were all the claims made in my Originating Application.
“20.3 Paragraph 7 - the tapes - …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.”
Without the required access to this evidence, I have no way of knowing if the tapes were in fact altered in any way. More important, as I did not have access to the actual tapes heard by the Tribunal at the time – and still have not been given access to them - this meant I had to rely on my memory of hearing them a year previously. As a result, I did not even recognise to what parts of them Respondent’s counsel had specifically directed the Tribunal’s attention, and hence would not have been able to properly comment on any comments by the Tribunal on their content. In any case, I was never given any opportunity to respond to these views – and read about them for the first time in their Extended Reasons. Thus, I was never able to challenge the Tribunal’s interpretation of what they heard on the indistinct tapes; even though they then chose to make the content of these central to their decisions on the case.
“20.4 Paragraph 9 - Protected Disclosures - …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."”
The key point, however, is that the Tribunal had accepted that any of these incidents, including (vii) which was accepted (and indeed stressed) by the Respondent, met the all-important initial tests required for a Protected Disclosure. I accept that I then had to show that there was resulting discrimination. In this context, the damning email of 11 October 2001 (pages 502-503 in the bundle), which the Tribunal still did not give proper attention to, provided this link to my later treatment at the hands of the Dean. More directly, where the Review states:
“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."”
It is difficult to see how the Tribunal could claim to have examined any balance between various testimonies where my two witnesses – who had been called with the specific intent of offering independent evidence of the bullying - were very clear in stating I had been bullied, and most memorably both described (under very challenging cross-examination) a ‘climate of fear’ which the Dean had created. Against this the Dean had only attempted to excuse this behaviour as ‘tough management’ and neither of the other witnesses offered any comment on the subject. Indeed, the Respondent never attempted at any stage to make a case that the bullying did not take place. Thus, the only substantive evidence on the question of bullying confirmed that it took place.
“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."
It is not up to the Tribunal to make it own medical diagnoses, or to read into Dr Wilson’s statements more than is there for all to see. Thus, although Dr Wilson did indeed note that he did not find me ‘particularly depressed’, this was nearly a year after my initial breakdown; and after psychiatric treatment and continuing administration of the Efexor anti-depressant. Even then he added that I had “something akin to a work-phobia” and that my view that “…increasing workload leading to stress complicated by harassment and frustration from the Open University had led [me] to be ill and [was] probably an accurate assessment of the current situation.” In any case, all that the law requires is that he diagnosed a "clinically well-recognised illness", which it is agreed he did; diagnosing “Mild Depressive Illness: ICD-10 (F32.10) Secondary to Stress”
“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."”
I am still unable to see what more proof was required. My "normal day to day activities" were my work for OUBS; almost to the exclusion of other activities – especially in the run-up to my breakdown where my workload had escalated by a factor of five. The fact that I was no longer able to do this was attested to separately by at least five doctors and was clearly accepted by the OU and ultimately by USS.
“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.
… The third option would depend on both parties reaching agreement.
… The parties were negotiating to find a compromise but had failed to do so
This was the nub of the case, but the Tribunal simply chose not to address why this was so – and did not either at the Review. Indeed, they do not even refer to the comments in my para 14 response:
“In the absence of OU comment here, their sole documented claim (covered in para 21 later) is that - in their view - only Dr Wilson's recommendations referred to ‘suitable conditions’. In fact, even in this event, OUBS management failed to implement any such condition(s) - as their only subsequent response was to falsely claim that I had retired. The fuller picture shows, Dr Sorrell, their own medical expert, had also clearly demanded - a year previously [page 294] - that ‘suitable conditions’ be provided; but OUBS management had ignored this and every subsequent plea [pages 560, 600, 694, 773 and 796/797] - despite the fact that Dr Sorrell clearly believed these would have been relatively easy to implement as indeed they would have been.”
Neither did it choose to answer my claim submitted to the Review that:
“I definitely was not made aware at the outset (not even in the unrecorded in-camera pre-hearing) that, as the Tribunal claims, it "would determine these issues on evidence heard during the course of the substantive hearing". Had I been made aware of such a decision, I would have raised the strongest possible protest, and expected this to have been recorded in the Extended Reasons. Indeed, in disregarding the extensive written medical evidence I formally provided to support my case, the Tribunal was in breach of the precedent set by Kapadia v London Borough of Lambeth. Indeed, in stating that I did not ‘call any medical evidence’ and only gave ‘oral evidence’ myself which merely referred to ‘other reports’, the Tribunal signally failed to do justice to the significant amounts of formal medical evidence submitted in this form.”
“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”
This does not in any way address my complaint to the Review that:
“As it had been agreed with the Respondent that Dr Wilson's evidence would suffice, and the Tribunal never indicated – even during the hearing as the evidence was presented - that it would require further support, I did not ask to call Dr Sorrell; until the Respondent controversially required that I agree to his case notes being provided. At that stage it became clear that, for a number of reasons, he had become the key witness. The Tribunal fails to report here that it denied me this witness despite my application for this to happen (as part of the interlocutory process) - where it had earlier in the hearing agreed to call a late witness proposed by the respondent; though that too is unrecorded, as is the significant later decision by the Respondent not to put its last two witnesses on the stand.”
“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.”
Assuming that this addresses further paragraphs and not just 26.2, I did not ask for further facts to be added but for key errors to be amended. Instead, the Tribunal Review chose to make no comment on para 26.3
“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 reason for our drawing attention to para 26.5 was that it said “…but he did not inform his employers of this until the following year (October 2000)” This was clearly wrong and prejudicial, so needed to be amended. I do not understand why the Tribunal here attempt to cover up this mistake. It is also not clear why the Tribunal then goes on to report an unrelated aspect of this original para:
“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.”
Since it is not mentioned by the Tribunal, it should be noted that this statement by me was at a time, two years before my breakdown, when my workload was relatively low.
“26.7 The statement that "David M gave me sight of a file..." does not mean that the file was read.”
Were this a criminal court, it might be possible for the Respondent to argue that ‘it was not proved beyond reasonable doubt’ that he had read it; but this is a civil action to be decided on the balance of probabilities. When combined with the sentence in the 11th October 2001 email, that “David handed me a file of his correspondence with the previous Dean when I became Dean. It is reasonable to say that his behaviour has been unacceptable for many years”, and he was well aware that the file was political dynamite and indeed elements from it were used against me in my Grievance, I believe the balance of probability is that he did read it. It certainly should not be for the Tribunal to issue a blanket denial of this.
“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.”
I did not make any formal request for the matter to be passed to the CPS. I had assumed that the court officials would do this as a matter of course once I had identified the problem. Thus, I identified the issue of whether he had read the file as one area of likely perjury. I identified the issue of his destruction of the evidence in the libel case (page 523) as definite "perversion of the course of justice". I also identified several breaches of the Data Protection Act – including withholding my Personnel File from me and transferring confidential files onto his own PC. The importance of my charges, which I believed were made strenuously (and were certainly sufficiently controversial not to be missed), here is that a key decision by the Tribunal was that they accepted that everything the Dean said, perjury and all, was true; and, where this contradicted me, what I said was false. For the record, I have only ever made such charges against the Dean, and never directly laid such charges against any other members of the university.
“26.14 These are issues of fact where we have made findings that Dr Mercer does not agree with.
In fact, as I stated in my response, the evidence unequivocally showed that:
“I had not lodged a ‘number’ of grievances, but only one (plus an informal complaint). Apart from the usual academic disagreements, as my witnesses stated, I had only fallen out to any significant extent with one colleague (Tony Stapleton) and, of course, Roland Kaye. I had not ‘often’ threatened libel proceedings; having only done this once; when a clear case of defamation (in fact slander) had occurred [pages 142-146]. Despite the OU’s claim, I did not introduce the ‘six incidents’. These emerged during the disclosure process and were introduced as part of Katie Stocks’ Supplemental Witness Statement and my document handed to the Tribunal (and not reported or even formally entered into the record) was intended to rebut these.”
The Tribunal cannot assert that their contradictory claims are ‘matters of fact’
“The same applies to paragraph 26.16.”
As I stated in my response:
“In general, the flat statement of ‘facts’, without any requisite comment, does not do justice to the importance of this crucial email; which – whatever version you believe (be it bringing in the AUT, threat of legal action, release of the ‘dossier’ or the David Parker incident) - dramatically records the Dean’s long-term bitterness and anger at my whistle-blowing. It also very clearly records his strategic intent to cynically use whatever discriminatory method (including ‘to empty my pockets’) was available to ‘shut me up’.”
This email is crucial to my case, since it definitively demonstrates the links between the Protected Disclosures and the his subsequent treatment of me. It is, at the very least, disingenuous to dismiss it as “…issues of fact where we have made findings that Dr Mercer does not agree with”.
“Para 26.15 As they do not relate to the legal issues involved, and the Tribunal’s views of the law on defamation are incorrect, these should not have formed part of the judgement.”
“Para 26.18 As I have not had access to the tape the Tribunal heard, I cannot comment definitively – except by reference to the transcript. However, it is clear that the Tribunal made a basic error in claiming that both the Dean and myself were ‘threatening defamation proceedings’ against each other; a fundamental error which is especially important where the Tribunal (on the basis of just one hearing of it) seems to make the content of this tape central to its decisions. It is true that, as the OU responds, I had previously made it clear that I might go to court on the (Chair) issue [pages 516-518]; and indeed it was my further claim at the tribunal that this was one whistle-blowing reason for the Dean's 11th October email. There was, however, never any threat by me of an action for defamation as the Tribunal claimed. In addition, the Tribunal’s concern over my mention of a ‘discovery process’ (rather than ‘disclosure’ which is the term now used) makes no allowance for the fact that I had sought to make myself aware of the relevant legal processes during my aborted claim for defamation a decade previously.”
` In view of the stress placed on their – factually incorrect – interpretation of this recording, it is astonishing that no comment is included in th report of the Review.
“Para 26.22 The Tribunal here crucially makes misleading use of the Katie Stocks’ email, without comparison to the original email from Prof. Bassindale, which (according to OU rules) should have represented the real authority for the offer. His email [page 639] actually said:
“With reference to your memo about David Mercer and his accrued leave and study leave, given the information at my disposal I can only approve 14 months of study leave and 10 days of carried forward annual leave. I think you will agree that without proper records I have no alternative. However I can offer the following comments. An individual's workload is at the discretion of the Head of Unit. If you want to see David Mercer engaging more strategically with research then you are able, if you so wish, to agree that within the School. My strong recommendation is that you ask for a work plan with aims and planned outcomes for the accrued study leave. If David Mercer is able to deliver those outcomes within the stated timescale then it would be appropriate for you to consider the next stage. I do not think it would be useful to commit the whole period of time requested in one go. I hope this is useful.”
Thus, Katie Stocks email is clearly wrong, and for whatever reason (whether by accident or design) misleading, about two crucial points. She totally fails to report the bottom line of the matter, where Prof Bassindale’s original clearly focused on the valid alternative that “An individual’s workload is at the discretion of the Head of Unit”. Accordingly, this important suggestion was kept from me. As recognized by the Dean and admitted by him on the witness stand in the context of my cross-examination (specifically in terms of challenging where the missing letter of authorization from the VC was), this would have allowed me to undertake at least a further two years of research after the year of study leave had ended; exactly as I wanted.
Moreover, the lack of comparison hides the fact that Katie Stocks also falsely reported that Prof. Bassindale had said that further leave would be available when he had, instead, specifically ruled this out unless further evidence was forthcoming. As a result of my inevitable lack of knowledge about the true contents of the original email, and whatever caused the OUBS management to forget this, this non-existent issue unnecessarily became a bone of contention over the next months. As a result, the contractual arguments, especially those about the conditions to be met in order to grant the non-existent further study leave (which involved extensive recourse to legal advisors), had already been made unambiguous by the terms of Prof Bassindale’s email.
The subsequent OUBS responses were, thus, unhelpful and – by design or accident – unnecessarily prolonged the discussions and forced me to incur unnecessary legal expenses (in line with the Deans strategy of using legal processes to ‘empty my pockets’ described in the 11th October email).
Rather misleadingly, OU counsel comments that Roland Kaye never admitted that “…the Applicant should be entitled to a three year lump sum study leave”; where I never claimed this – only that I should have the agreed period (‘study leave’) for my new research.”
It is astounding, considering that this was one of the crucial developments which emerged during the original hearing, that the Review did to even address it!
“Para 26.23 Once again this is wrong. After the initial referrals (latterly of 8 November 2001 [pages 555/556]) the evidence shows that OUBS management took no further direct interest in my health; and the ‘dialogue’ was continued on Dr Sorrell’s initiative.”
“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.”
This still leaves the Tribunal to account for the crucial telephone conference of 23 May 2002. There is no explanation, apart from negligence, why it did not take this into account.
“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””
I never said I was going to use the time to write a book, that would simply have been untrue; even if it did fit the Tribunal’s suspicions that my motives were mercenary. I did not even, as the Tribunal now claims, ever say I “was intending to prepare a series of papers”. That too was not the case. What I said, in my Response to the Review, was that “The ‘writing’ demanded by Angus Laing was of papers in learned journals.” I had always stated that the time was to be used for research, and had indeed already prepared a proposal to this effect – and gathered a team to work with me on it. This is what study leave is intended to be used for.
Dr Wilson (not Dr Lawton) was indeed correct (on page 781 as quoted) when he stated in his confidential psychiatric report that – rather than ‘a large project’ – “David Mercer had set his heart on doing a large and significant research project once he reached his mid-fifties.” This is exactly what I still intended to do.
“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.”
In fact, the OU response to the review was still the manifestly false statement that “The first time the Respondent became aware of the application was when it received a letter from the USS confirming that the Applicant’s application for ill-health/retirement had been accepted”. The importance of this was not that Katy Stocks was surprised, but was that it showed she had, presumably in concert with the Dean who would have had to support her actions, was already managing the process which led to their ‘threat of dismissal’. Their claims of ignorance of it are, therefore, potentially perjured.
“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."”
Although the key fact that that this debate too place - in camera - in the unreported pre-hearing is still not admitted, the key factor here is that the Tribunal accept that I had agreed to change my position to one where the letters was a ‘threat of dismissal’.
Para 27 (in the original Extended Reasons): This was not addressed at all, and neither were any other elements of my evidence. These were important, since they contained the harshest criticisms of my case. I will, therefore, for each para, copy the response I had made to the Review, which was not addressed:
“Although this paragraph starts by referring to my claim that I had been bullied, the Tribunal nowhere actually addresses this claim. In particular, it does not refer to the definitive statements by my two witnesses who both – under cross-examination – made the point that a ‘climate of fear’ existed in OUBS and that, as the most outspoken critic of management, I had been subjected to the most bullying.
I am not sure what the Tribunal means by ‘bombastic’, since the ‘theatrical language’ this implies is a necessary element of my role as a teacher and especially as a speaker to large international audiences. However, I believe that the Tribunal was opening a can of legal worms when it linked this with the libelous comments made by Mark Tulitt; unnecessarily commenting that “Many of the findings made by Mark Tulitt in his draft feedback reflect our experience of listening to Mr Mercer present his case before us in the Tribunal”. Thus, despite my CV (which shows my long history of successful high level management) and my impeccable formal record within the OU (as well as the trust placed in me by various governments and international organisations), the Tribunal – without suitable qualification – placed itself in the position of agreeing with Mark Tulitt’s libellous summary that “…you will not effectively handle an influential job with people management or commercial management responsibility, just as you have not done so to date after all this time.” By gratuitously entering into matters which should only have concerned the High Court due to consider the matter of defamation, the Tribunal – albeit with (unethical use of) qualified privilege – fatally prejudiced my position.
In any case, I very clearly stated that the libel was necessarily outside the jurisdiction of the hearing; and should play no part in it. As such, I made no attempt to answer the charges in it. In choosing to support the libel the Tribunal has, therefore, not only entered into an area where it has no jurisdiction but – in presenting just one-side of the argument - has not afforded me the opportunity to present my own extensive case concerning this.
Neither the Respondent nor the Tribunal have pointed to any evidence supporting the claims of contradictory evidence or of exaggerating the facts.”
Para 28. “In particular, I find it difficult to understand why the tribunal so easily dismissed my words which, in the transcript agreed by the Tribunal and the Respondent, included:
"RK I am stating to you the university secretary's rules which have been passed down are if there is a letter from the university signed by the vice chancellor extending beyond the 12 months then (inaudible) ... the university rules are 12 months only.
DM OK (in resigned voice) I am telling you now that I cannot face up to that the only thing that has kept me going, saved me from a nervous breakdown, I have been suffering many of the symptoms of a nervous breakdown, the only thing that has kept me going is the thought that I only have to survive as far as April. Now you are denying me that safe get-out.
RK.. I ask for evidence, I ask for evidence David. I want to ask for evidence because you know the statement you have three and a ha f years..
DM well you are pushing me into a corner. You are pushing me into a bloody nervous breakdown on this.
RK I am not pushing you
DM I have already had my health immensely damaged, including a heart condition and I, I just cannot believe that you would hold a meeting like this. You would be silly enough to hold a meeting like this. I am sorry, let us break this meeting and let us bring in, I will bring in the AUT to represent me at the meeting. I will bring in a lawyer to represent me at the meeting.
RK bring a lawyer and I am happy to repeat what has taken place in here. (inaudible) nut what I am saying as your line manager "
Despite the possible misunderstanding, where the Tribunal may have thought that I did not go on sick leave until a week later, in fact I went as soon as possible from this meeting to my doctor's surgery, where I was diagnosed as suffering from clinical depression (and was prescribed an antidepressant) and sent home on sick leave. Thus, if the Tribunal did not find evidence of a breakdown on the tape itself, this medical diagnosis provides definitive evidence that my breakdown did occur at that time.”
Para 29. “I have never said that my contract claim depended heavily on Paul Dixon’s words. Even so, I certainly have never accepted that “…there had been no such agreement.”
Para 30. “Considering that my future was on the line, I do not believe my reaction was either exaggerated or extreme – especially where my solicitors had formally reviewed my letter[pages 474-476]. Indeed, despite the tribunal's perverse views, I still believe that any normal person in my position would have been shocked by what was being threatened.”
Para 31. “One very clear form of detriment was the bullying, described by my witnesses - and according to them occasioned because of my standing up to the Dean with these protected disclosures. This has to be one of the severest forms of detriment. Moreover, the strategy proposed by the Dean, in his email of 11th October 2001 [pages 558/559] and put into effect later, included the statement that I should be severely disciplined (as in effect I was). As such it very clearly describes a number of planned detriments. The university undertook only one investigation – that of the 2002 grievance.”
Para 32. “This is untrue, since Dr Sorrell's earlier reports clearly show that he thought the necessary adjustments he was demanding would have been easy for OUBS management to make. The fact that OUBS management refused to consider his demands led to his later conclusion that the OUBS would not, rather than could not, make such adjustments.”
Para 33. “There is some potential confusion here, since it is not clear who the ‘Respondents’ are meant to be. If, as elsewhere, this refers to Open University management then – until the very last – relationships were not strained. Indeed, the previous Vice Chancellor had invited me to dinner at his house, then considered by OU academics to be a mark of special favour, and arranged for me to join him (and then in effect partially replace him) on a DTI task force. If, as I suspect, it means the current Dean of OUBS, then relationships had been strained - not just with me but most of the academics (and especially the then Dean, Andrew Thomson) from the day he joined in the early 1990s.
On the other hand, the definitive evidence given by my two witnesses, and never successfully challenged, clearly indicated that latterly at least the state of affairs primarily arose from the Dean’s actions. This was true of the ‘climate of fear’ being experienced across the school and in particular of the bullying which I received.
It seems possible that the Tribunal confused the actions of OU management, whose responsible actions I would not criticize, with the irresponsible ones of the OUBS Dean, which were not just unacceptable but at times illegal.
In addition, the Tribunal, lacking direct experience of this field of academia, may have considered the period of three years given over to ‘study leave’ to be wholly unrealistic without special conditions being applied Indeed, there is a suggestion elsewhere that the Tribunal thought that study leave was the equivalent of an unconditional holiday – rather than the opportunity to undertake the serious research which academics are supposed to do. But the fact was that the conditions should have been – for the12 months actually on offer from Prof Bassindale – exactly what was contractually stated in the T&C. It is now clear that the full OU agreement, which was denied me by the Dean, intended that the remaining two years were to be offered as normal research work – as I would have wished – under the usual relevant T&C, to which I would have had no objections. In any case, although the dispute over terms was not finalized (since, as stated by my witness Alan Plath, those offered by Angus Laing were not viable), I never refused to be subject to reasonable conditions. Further, it is unwarranted for the Tribunal to retrospectively impose its own values on these agreements, rather than apply the OU’s T&Cs relating to the specific academic circumstances.”
“ERRORS AND OMISSIONS (numbers as per Tribunal)
Considering the importance of these further issues, which were inexplicably omitted from the original decisions of the Tribunal, its latest amendments are clearly only token in nature.
"(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.”
There is nothing in the precedents which suggests that the Applicant must positively avoid all ‘difficulties in the relationship’ with the Respondent’s appointed line manager no matter what the latter does, and be penalized if this happens, and indeed common sense suggests that it would be very difficult for an Applicant to avoid confrontations under such a situation. There are, though, a number of precedents where a general breakdown in trust and confidence – such as here where according to the witnesses the Respondent’s manager created a climate of fear in general as well as directly bullying me.
“(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.”
These two answers very neatly bracket, in what I can only describe as a cynical attempt not to provide the whole truth, the years of 2000 and 2001. There has been no challenge to the proven fact that, in these years, my workload increased fivefold. Equally, there has been no challenge to the fact that – for the last several months of this time until I suffered my breakdown – I was even publicly denied a line manager who might have helped reduce this load. In terms of the fact that my workload was reduced in the last year ‘because I was ‘off sick’, I consider this an insult; it seems to suggest that I viewed, or should have viewed, such leave, suffering from clinical stress and anxiety, as some form of holiday!
“(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.”
If the clear documentary evidence of, for example, the 11 October 2001 email is insufficient, then that of my two witnesses should have been. To describe it as ‘slight’ is to insult their integrity. They were called by me largely in order to provide independent witness to the bullying which had occurred. Their evidence on this count was unambiguous. Indeed, it was even stronger under the harsh cross examination they had to endure, since it was then that both of them – independently – referred to the ‘climate of fear’ which existed in OUBS under the management of Mr. Kaye. Against this the only partial rebuttal attempted by the Respondent’s witnesses was that offered by the Dean, who attempted to excuse this as ‘strong management’. The Tribunal does not accuse my witnesses of perjury, so why does it say that my claim of bullying is not supported.
“Indeed, some evidence (such as the recorded meeting with the Dean) suggests that it was Dr Mercer who was the bully.”
Indeed, such is the bias shown by the Tribunal, that it even suggests I bullied the Dean! It is, indeed claimed that I managed to do this despite the fact that he was (supposedly) my line manager – one who proudly claimed to be a strong manager – who held all the cards in his hand; including those relating to my future in the OUBS. As the audio version of the fateful meeting, which the Tribunal rightly consider was so important, is in dispute I can only go by the transcript which has – however – been agreed by all parties. As shown earlier, there is no evidence of my threatening him – as the Tribunal have falsely attempted to accuse me of – but there is of him threatening me. It also has to be noted that this meeting was called by him without allowing me to have a union representative with me, and this was further denied me during the meeting itself. Finally, as I stated during the meeting, I was pushed into a breakdown – which was formally diagnosed immediately after the meeting. The scenario, suggested by the Tribunal, whereby I was the bully in that meeting is literally incredible. As such, it confirms the extent to which it was biased in this matter as in the others!
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.”
I was not aware that counsel would see this as such an important issue. But, if necessary, my wife – who was the only independent witness present – will confirm that this happened.
“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.”
As, indeed, hopefully will happen.
“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.”
There are indeed a number of disputed facts and issues, but there are also a significant number of important unanswered questions left where the indisputable facts prove the reporting of the Tribunal clearly wrong.
“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.”
Again, there are indeed a number of disputed facts and issues, but there are also a significant number of important unanswered questions left where the indisputable facts prove the reporting of the Tribunal clearly wrong.
“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.”
It will be up to the EAT to decide whether the choice of facts to consider, and interpretation given to them, is sufficiently biased – as I do – to consider this to have been against natural justice.
“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.”
hits