Rahman v Mayers [1992] UKEAT 508_92_1811 (18 November 1992)

JUDGMENT Revised APPEARANCES For the Appellant MR A DAVIES (Of Counsel) Legal Department British Medical Association BMA House Tavistock Square London WC1H 9JP For the Respondent No appearance by or on behalf of the Respondent MR JUSTICE WOOD (PRESIDENT): Mrs Andrea Mayers used to work for the Respondent, Dr Rahman, who has his surgery in Smethwick in the West Midlands. By an Originating Application dated 5th October 1991 she alleged that she had been constructively dismissed by Dr Rahman. The date of dismissal was placed as the 18th October 1991, it followed from correspondence passing between herself and Dr Rahman at about that time. Her Originating Application contained a page on which she set out the facts upon which she relied in support of her allegation that she had been constructively dismissed. Her employment started on the 17th July 1986. At that time two partners, Dr Allum and Dr Rahman owned the practice and the two doctors shared the facilities. In May 1989 they decided to separate and Mrs Mayers, from that date, became Dr Rahman's receptionist at that same surgery. In July of that same year a Miss Jagir Droach joined as the practice junior to help Mrs Mayers. During the period of which she spoke she described her responsibilities as being for the petty cash; a key holder; she was helping with the community midwife on the Ante-natal Clinic; family planning; Well Women Clinic; the register of smear tests; and the register of the older patients, so that she had a fairly wide ranging responsibility, including that of being merely a receptionist. Initially, her contract of employment specified that she should work 35 hours a week. However, as she said in her evidence, she was working a great deal more than that. The hours that she set out in that evidence in fact total, if one includes lunch hours, something like 47 hours a week. In May 1991 there was a question of who should go on a computer training course, because a computer was to be introduced. The Applicant asked if she could do this. This was refused and in fact Dr Rahman's wife was sent on the course, as was the junior, Jagir. The Applicant complained that this was unfair. There was an incident she refers to when she was off for a day with a migraine and was told that that was not a good enough excuse, by Dr Rahman, who was her doctor. She objected to this. Then she adds this particular short paragraph upon which Mr Davies, for the Appellant before us relies, it reads thus: "Shortly after this incident my weekly hours were reduced from 35 per week down to 30 with a resultant loss of pay. From this time onwards [this time being June 1991] a number of actions taken by Dr Rahman took away from me part of my duties." She says that she was informed that she need not be at the surgery at certain times and that Mrs Rahman would be doing those sessions. The baby food store was locked, the key was not available while Dr Rahman was away, and she was no longer permitted to deal with the ante-natal clinics. On Friday 4th October 1991 the crisis came to a head, in her evidence she describes it thus: "About the 5th October 1991 the respondent showed me a document setting out my new hours totalling 18 per week. Up till then they had been 30. He told me I had to sign in and out. Hours would be flexi. He was making his wife practice manager. I was to take orders from her. If I did not like it I knew what I could do. I was upset and went home." and finally, in her Notice of Application she says:- "I consider the actions of Dr Rahman to be constructive dismissal." There is one statement there which is inaccurate and that is the statement to which we have already referred, namely, shortly after the incident in June 1991 her weekly hours being reduced from 35 to 30. It is quite apparent from the documentation which is before us, and which was before the Industrial Tribunal, that she is wrong about that and that the reduction took place on the 1st January 1990. There is a letter to that effect from Dr Rahman and there is also a fresh contract of employment which both she and Dr Rahman signed in the documentation. Moreover, it is clear from the cross-examination of the Applicant that those documents were shown to her so that the date was shown to be incorrect and the correct date was the 1st January 1990. When she was shown those documents in cross-examination she was told, she said: "It was only a paper change since I was working 45 hours." as we have already indicated that may or may not be precisely accurate but it was certain that she was working in excess of 45 hours on the evidence that she had given. How then should one read that statement of her case? It seems to us abundantly clear that apart from that error on the date on the reduction of hours from 35 to 30, what this Applicant was really saying is, that I started in 1986, in 1989 I became Dr Rahman's sole receptionist, receptionist is not quite the right phrase to use because I was doing a great deal more, and she has set out the extent of her responsibilities. Then, that all was well until May 1991 when the computer course came, she felt it unfair that Dr Rahman's wife should go on this. She was refused permission. There was incident in connection with the migraine. Then from this time onwards a number of actions taken by Dr Rahman took away from me part of my duties, and then she specifies part of those duties and she was no longer permitted to deal with the ante-natal clinics. The matter came finally to a head when there was a unilateral change in the hours from 30 to 18, which would have, of course, reduced her income very considerably, and she resigned saying that this was a constructive dismissal as a result of the actions of Dr Rahman. It seems to us that that is a fairly clear case if one reads that document carefully. The case was heard by an Industrial Tribunal sitting at Birmingham under the Chairmanship of the learned Regional Chairman, Mr Richard Smith. The Hearing took place on 25th February 1992. We have been told that the Hearing took about 3 hours. The Notes of Evidence are before us. It has been suggested that they are very short and do not reflect the evidence that was given in sufficient detail. There are, let us say, seven pages of notes and it seems to us from a reading of them, bearing in mind that this Hearing took 3 hours, which must have included submissions, that the Notes could not be said to be so short as to be insufficient record of what took place. Having seen and heard the witnesses, the Tribunal took the view that they accepted the evidence of the Applicant and Jagir, who she called on her behalf and who, incidentally, had resigned because of the way she thought that the Applicant had been treated by Dr Rahman and they say this in paragraph 5: "The evidence of the respondent and his witnesses is to the contrary but we had the advantage of hearing and seeing the various witnesses as they gave their evidence and are unanimous in preferring the evidence of the applicant and her witnesses to that of the respondent and his witnesses and if an in so far as the latter differs from the former we accept the former. The applicant and Jagir gave their evidence clearly and without hesitation and both impressed us as witnesses of truth. Jagir was so incensed at the respondent's treatment of the applicant that she left in November; she did not like it there any more. Put bluntly it seems to us that from about May until the applicant resigned in October the respondent embarked on a deliberate course to diminish the applicant's responsibilities to bring his wife into the practice because the appropriate authority was making more money available. The applicant had worn out her usefulness to him." We can see that those are strong words and Dr Rahman takes strong objection to them. He also as the basis for his appeal to this Tribunal, alleged misconduct and bias on the part of the learned Chairman. In its finding of fact the Tribunal deal with those matters to which we have already referred in the Originating Application. The Judgment does not deal with every single fact but it gives a broad summary of the facts, and once one has read the Notes of Evidence it is quite clear that the learned Chairman has picked out the salient matters and dealt with them in the Reasons. The first point taken by Mr Davies is that the Applicant was in error about the date when her hours were reduced to 30 and that this was not brought out sufficiently; that Dr Rahman was therefore not able to produce further documents to indicate that she was in error and, if you like, that she was not telling the truth, if he goes as far as to allege that it was a deliberate error on her behalf. However, it seems to us that the documents that could have been produced, about which there was originally to be an application to adduce them before us, would only have indicated that Mrs Rahman was working some 10 hours and away from the surgery during the early years. In any event, the point about the date was in fact taken in cross-examination at the beginning of the Notes of Evidence. We therefore take the view that there is nothing in that particular point. There was an error and it was pointed out and anything could have been made of it in front of the Tribunal had the Advocate so wished. On this occasion the Advocate for Dr Rahman was a district representative of the British Medical Association (BMA) who is not legally qualified but is undoubtedly experienced in appearing before industrial tribunals. For the Applicant was a member of the Citizens' Advice Bureau. So as far as that first point is made we do not accept that that was a fundamental fact on which there is any indication of an error in the Tribunal. However, it is right to say this, that the way it is put by Mr Davies is that that error must be looked at against the allegations being made against the learned Chairman. So we turn next to look at those allegations. Dr Rahman has sworn an affidavit, in accordance with our usual practice, and in it he sets out a substantial number of complaints. That affidavit was sent to the learned Chairman who he replied by a letter of 17th July. Also before us are letters of the 14th and 15th July 1992 from the two lay Members of the Tribunal. We have looked at and compared those documents and we feel that the easiest way is to see where the real nub of the complaint lies. It is perhaps easiest to take the points in reverse order. In paragraph 12 of his affidavit Dr Rahman complains that the Notes of Evidence would not be a full record of the proceedings. No Notes of Evidence ever are. The Chairman takes notes for his own convenience to help him discuss the matter with the Members and for the purposes of any appeal, but it is not at any time a full shorthand record of the proceedings. We have already indicated, having regard to the time and the extent of the notes, that it seems to us that they are more than adequate as a note of what took place during those 3 hours. In paragraph 11 Dr Rahman complains that the learned Chairman would not understand the meaning of the phrase "down on bended knee" and he felt that this was an indication that he was incapable of understanding idioms, metaphors and modes of speech of the English language and, by implication, that he was deficient in an understanding of the norms of good employee relationships and fair treatment. Neither the learned Chairman nor the two Members can remember that incident at all. It may have been said but we feel that perhaps Dr Rahman read more into that than was ever intended or could have been intended in the circumstances. The next point is that the learned Chairman is said to have warned the Citizens Advice representative that he was spoiling his client's case by pursuing various points. It is difficult to see quite to what that would refer but apparently the learned Chairman was interrupting Mr Hingley while he was cross-examining. It may be that the learned Chairman said "I do not think that is going to help your case very much", and indeed, any Chairman or Judge might well have said that if he thought it was not helpful and not carrying the case forward in any way; after all it was Mr Hingley who was asking the questions and it is difficult to see how that could have affected Dr Rahman's case. Paragraph 9 refers to a very unfortunate incident. Dr Rahman wished to swear on the "Koran". It is the duty of the Clerk of the Court to ask the parties beforehand how they wish to take the oath. This was a new Clerk, his first day on, and it is quite clear that he failed to do so and was the subject of, what sounded like, a fairly crisp remark from the learned Chairman. Both he and the Members are satisfied it was the Clerk to which those remarks were aimed and not Dr Rahman. Paragraph 8 is simply a question of fact. It had been suggested by Dr Rahman that the reason for Mrs Mayers' departure was her misconduct and negligence and it was suggested that she had been "moonlighting", working in a launderette whilst at the same time working as a receptionist for him, that was an issue of fact, and that was rejected. We see no problems in that particular issue. It follows therefore that it is really to paragraphs 6 and 7 that one needs to look for the substance of the case as it had been most ably presented to us by Mr Davies. The first point taken in paragraph 6 is that the learned Chairman was leading the Applicant in her evidence. He comments that Mr Hingley was not the most able of Advocates and he tried to help. The lay Members felt that he was paraphrasing and trying to get a clear indication of what the case was all about and the evidence which was to be given. We asked Mr Davies, over the short adjournment, if there were any particular passages in the Notes of Evidence which indicated that the words had been put into the mouth of the Applicant as it appeared to us that there was no such incident. On instructions from Dr Rahman, Mr Davies, on our return, pointed to one particular line which reads: "The respondent was slowly easing me out to work his wife in." That happens to be probably the most damaging piece of evidence in the whole of her case but it is also true that she had said in chief, early on, "after that I felt excluded". So that the notion of being eased out; the notion of being replaced and having her position curtailed and her responsibilities curtailed was not mentioned only in that one sentence. It seems to us in any event that the notion was there even if the expression "easing out" came from the learned Chairman. Going back, therefore to paragraph 7, of the affidavit from Dr Rahman, he complains of abruptness; impatience and lack of willingness to listen to his case or the evidence on the part of the learned Chairman. He complains of frequent interruption of his Advocate during cross-examination and he complains that the learned Chairman was phrasing, or wanting his representative, to phrase questions so as if possible to get yes and no answers. In so far as there was any indication of impatience or abruptness that, of course, is most unfortunate. It may be that the learned Chairman felt that time was being wasted unnecessarily and he may have indicated that he really wanted to get to the nub of the case and to see what the evidence was upon those matters. The lay Members deal with those particular aspects in their letters, they deal particularly with those allegations, and support the Chairman who had expressed the regret that anyone should have felt aggrieved at his handling of the case. Indeed they say that they had not perceived the Hearing in the same way as Dr Rahman. The test in these cases, of course, is the objective test. We have the well known case of Peter Simper & Co v. Cooke [1986] IRLR 19, there Mr Justice Peter Gibson had set out the well known test on these situations where he says: "We take it to be axiomatic that justice before a Tribunal must not only be done but also must be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the tribunal also the tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party to the proceedings but knowing the issues, reasonably gain the impression of bias." Looking at the evidence from the Members, and reading the Notes of Evidence, it may very well be there was a degree of impatience. It may very well be, also, that there was an indication from the Tribunal that they found the evidence of the Applicant and Jagir to be more acceptable than that of the doctor and his witnesses. It may also be that in view of the somewhat strong phraseology used in the decision and also the incident about the "Koran", and the incident "on bended knee" that Dr Rahman took a view which was a personal view that the matter had been decided against him and unfairly decided against him. However, it seems to us impossible to take the view that someone who had merely been sitting listening would have come to the view that this was a biased Hearing. If you accept the evidence of the Applicant and of Jagir it seems to us quite clear. The point made by Mr Davies is that when you have the failure to make specific findings on that question of the reduction in hours; when you have the failure to put specifically the fact that Dr Rahman was easing out Mrs Mayers and introducing his wife, against the way in which the irritation was perhaps showing, that that indicates that this was a biased Hearing. There was no surprise about the way in which this case was put. As we have indicated it shows first of all in the Originating Application. We have read the Notes of Evidence through again with the greatest care. It is quite apparent from the way this case was being put by Mrs Mayers and it is also, as one of the Members of this Tribunal has remarked, clear that Dr Rahman was answering and dealing with some of those allegations, so that the issue was, not just over the hours of work but also over the way she was being treated. There were the two grounds therefore upon which the allegation of constructive dismissal could properly be based, the unilateral change in the hours of work and the change in the terms and conditions of employment and secondly, the way in which she was being treated and the way in which she was being reduced in her responsibilities and it was being done unilaterally. So that those two linked together, in our judgment, disclose a clear case of constructive dismissal. It was an issue of fact. There is no error of law and we are satisfied that the right result was achieved in this case and that there is no ground upon which, in law, this decision can be upset. It follows therefore, that despite the able submissions of Mr Davies, this appeal is dismissed. Perhaps I ought to add, something that should have been said at the beginning, that Mrs Andrea Mayers, the Applicant, who is the Respondent in front of us, is in fact going into hospital at the moment. She is not present but she has asked us to hear this case even in her absence and this we have done. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII