Appeal No.	 EAT/176/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 JUNE 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR I EZEKIEL
MR A D TUFFIN CBE

DR MARK PONNAMPALAM	APPELLANT

DR ALAN PATRICK O'CONNELL STRANDERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	DR STEPHEN WATKINS
(Trade Union Representative)
Vice President of the Medical Practitioners' Union
1 Parklands
Shaw
Oldham
Lancashire
OL2 8LW	

JUDGE ALTMAN

1	On 9 December 1999 the Regional Chairman of the Employment Tribunal of London (North) who was also the Chairman on the original decision subject to later decision refused an application by the Appellant to review the earlier decision promulgated on 10 May 1984 on the ground that it had no reasonable prospect of success.

2	Application had been made under paragraph 11 of The Employment Tribunals (Constitution Rules of Procedure) Regulations 1993 Schedule 1, for a review on the ground set out in sub paragraph 1(d) that 

“new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing.”

3	The matter comes before us by way of preliminary hearing to determine if there is a point of law capable of being argued in full before the Employment Appeal Tribunal.  We are enormously indebted to Mr Watkins who has canvassed the arguments on behalf of the Appellant very carefully and very thoroughly and it is clear he brought considerable experience and time to bear on this case in order to present the arguments.

4	Mr Watkins has argued that there has been evidence which has come to light subsequently and quite recently which had it been before the Employment Tribunal at the time may have led to the Tribunal’s coming to a different conclusion.  His second argument is that the nature of the evidence now available when contrasted with the evidence which, from the decision of the original Tribunal appears to have been adduced before it, is such as to give rise, as he put it, to questions of perjury.  
5	The Appellant was a surgeon, but in due course he turned to seek to qualify as a General Practitioner in medicine.  This required him to under-go a trainee-ship for one year.  After ten months of that trainee-ship he was dismissed.  The dismissal took place on the day that the Appellant was presenting to an Industrial Tribunal, as it was then called, a complaint against the Health Authority on grounds of racial discrimination.  It had been in the context of that hearing that his trainers, effectively the General Practice to which he was at the time assigned, had warned him not to draw that practice into controversy.  

6	The Appellant, when he appeared before the Industrial Tribunal, argued that his dismissal was motivated by reasons of racial discrimination.  The Respondents argued that it was caused by his incapability or misconduct.

7	In due course, in 1994 the Appellant made an application for what is called a “certificate of equivalent experience” in order seek to practice skills which he believes himself to have.  We pause to observe that we are fully aware that, unlike in many dismissal cases where a person will loose a job and then spend little time sadly out of work before finding other employment, the effect of this sort of dismissal is to blight a career or a potential career and is therefore a serious matter with very considerable repercussions.  Some people who are subject to such a disimissal have less ability than others to get over it as the years go by.  The application for a “certificate of equivalent experience” was what its name states, but it would have required, as an ingredient to permitting the Appellant to go forward, satisfactory completion of ten of the twelve months of trainee-ship.  

8	The doctor responsible for his training, a Dr Stranders, was asked by the Joint Committee of Postgraduate Training for General Practice to provide a report about that ten months.  He wrote a letter on 2 November 1994.  That application for a “certificate of equivalent experience” was rejected and a renewed application was made by the Appellant in 1999.  At that time he had disclosed to him the earlier letter of Dr Stranders.  It is argued that in that letter Dr Stranders indicates that if the Appellant had been able to complete the twelve months with another trainer who felt that Dr Stranders’ assessment had been incorrect, Dr Stranders would have been prepared to sign the certificate of proper completion of the period.  If that were true, says Mr Watkins, the serious allegations of either incapacity or misconduct given in evidence by Dr Stranders before the Industrial Tribunal cannot have been true because they could not be overlooked by a doctor simply deferring to another trainer who had seen the Appellant for some two months.  They would have been regarded as too serious.  Therefore that letter on the face of it, it is said, must have undermined the evidence before the original Tribunal and upon which that Tribunal, so the Appellant believed, relied.  

9	The decision of the original Industrial Tribunal of the 9 May 1984 was a reserved decision.  The hearing had lasted one day and the Tribunal took time to consider their judgment.  The decision we have seen, we understand, is the only record now of those proceedings; nothing else remains.  In their decision the Tribunal set out their findings of fact.  They set out a lot of background information about complaints of Mr Ponnampalam and an interview he had with a Medical Journal in which there were complaints about racial discrimination involving both the Family Practitioner Committee and, we understand, the Department of Health and Social Security.  

10	The Tribunal then turns in paragraph 8 to the findings as to the actual relationship between the Appellant and the doctors in his trainee-ship.  They say that during May the relationship between Mr Ponnampalam on the one hand and the practice on the other was subject to underlying dissatisfaction.  They set out two complaints which the Appellant had.  On the other hand Dr Stranders was seriously concerned at the way in which Mr Ponnampalam was performing.  The Tribunal fine that Dr Stranders was worried that Mr Ponnampalam had made it clear that he thought that General Practitioner work was beneath him; that he was not integrating well with the staff of the practice; that he was unwilling to work hard; that he had cancelled clinics at very short notice and that he was reluctant to identify cases as his own and take responsibility for them.  They point out that there was a discussion between Dr Stranders and Mr Ponnampalam in which a warning and the risk of premature termination of trainee-ship was given.  They say this: -

“The Tribunal is satisfied that Dr Stranders was not motivated by racial prejudice in making his criticisms”

11	However, that was not the view of the Appellant who indicated that if he was dismissed he would complain to an Industrial Tribunal.  They also record that Dr Stranders’ took on board a complaint about not having sufficient time to attend training courses and made adjustments.  Another doctor, Dr Bird, had joined Dr Stranders at an interview and he gave evidence of an interview with the Appellant in June that year and that it was pointed out that it required the Appellant to take part in the doctors rota to be on call and take responsibilities for cases.  The Industrial Tribunal go on to say 

“We think in criticising Mr Ponnampalam neither Dr Bird nor Dr Stranders who was with him were motivated by racial prejudice.  Nor do we think that the possibility that Mr Ponnampalam might complain of racial prejudice to an Industrial Tribunal made them treat Mr Ponnampalam any less favourably in this respect than they would have done had he never made the threat which he had made to Dr Stranders on 6 June.  We think that Dr Stranders and Dr Bird were concerned with Mr Ponnampalam’s performance in the Practice.  Mr Ponnampalam’s reaction to the criticism was that he was belligerent and accused Dr Bird of racial prejudice.”

They then refer to the letter spelling out days when Dr Bird said that the Appellant 

“had cancelled surgeries with little or no notice.”  

12	There is then reference to other matters that arose which show that the allegation was that the Appellant 

“had cancelled a surgery on 21 June.  He did not made arrangements for weekend duties and failed to arrive for surgery as expected on 22 July. Dr Stranders was on holiday from 4 July to 25 July.  During his absence he asked Dr Bird to supervise Mr Ponnampalam as trainer.  Dr Bird was dissatisfied with Mr Ponnampalam’s failings before, during and after the holiday and when Dr Stranders returned on 25 July he advised Dr Stranders to dismiss Mr Ponnampalam.” 

The Industrial Tribunal said: -

“The Tribunal is satisfied in that in doing so he was not motivated by any racial prejudice.”

13	The Tribunal then refer to the fact that the dismissal took place without any confrontation between employer and employee on the very day that the Appellant was at the Industrial Tribunal conducting the case of racial discrimination against the Department of Health and Social Security and the local Family Practitioner Committee.  Obviously the Appellant was very upset to return to find the letter awaiting him.  

14	The Tribunal then set out the case of the Appellant and the case of the Respondents.  They rejected the Appellant’s complaints about the way he was treated by the Respondents and suggested that they gave rise to

“No vestige of evidence connecting that with racial prejudice on the parts of Dr Stranders or Dr Bird.”  

15	The Tribunal then expresses their concern about the timing and manner of the Appellants dismissal.  They say that that “was such as to make the Tribunal most uneasy.”  They then directed themselves to the very area which so often arises when there is no direct evidence of matters of concern that do not have satisfactory explanation and said 

“ Bearing in mind the difficulties of proof in a case like the present, we look very carefully at the evidence to see whether there was any conscious or unconscious racial motive in the way in which Dr Stranders treated Mr Ponnampalam in dismissing him.”

16	They recognise the criticism that is available in relation to the method of dismissal but they conclude by saying 

“At the end of the day having seen and heard the witnesses in this case the Tribunal accept Dr Stranders’ explanation.  We do not think that the decision to dismiss had anything to do either with the previous proceedings or with any fear in Dr Stranders that Mr Ponnampalam would bring a complaint of racial discrimination against him.  We think that Dr Stranders had a legitimate reason for the dismissal and, as outlined above, he had warned Mr Ponnampalam that that was so.  “

The finding of the Industrial Tribunal was that the complaint failed.

17	The application for a review was based upon the letter of the 2 November 1994, which was released to the Appellant in 1999.  In that letter and with hindsight and apparently with no available records, Dr Stranders was explaining the history of the matter to the Joint Committee on Postgraduate Training for General Practice.  We have looked at the nature of the evidence which it was sought to introduce to upset by way of review the earlier decision of the Industrial Tribunal.  In that letter Dr Stranders said

“I dismissed Dr Ponnampalam as his performance as a trainee proved unsatisfactory despite repeated attempts to resolve matters.”

Then there is specific reference to failure to attend half-day release courses at Luton and Dunstable hospital, and reluctance to accept advice or help with regard to General Practitioner training.  The point is made that the correspondence is still not available nor are the assessments made by Dr Stranders at the time, because the events were over ten years ago before that letter.  Dr Stranders goes on to say this important evidence: -

“I would like to add that at the time of his dismissal I spoke to Dr Michael Price and stated that if he was able to find Dr Ponnampalam another trainer to complete his trainee-ship, and if that trainer felt that I had been incorrect in my assessment, I was prepared to reconsider his period or trainee-ship under my tutelage and grant a VTR1 to cover the period that he was with me.  I felt this was a reasonable course of action in case I had misjudged Dr Ponnampalam’s performance, and furthermore I did not wish to prevent his entry into General Practice, although I was personally unhappy with his performance while at Davenport House.  As far as I am aware, however, Dr Ponnampalam made no enquires of Dr Michael Price, and accordingly his trainee-ship was never completed under the auspices of another trainer.”

We were concerned as to whether there might be some argument arising from that as to whether the Appellant ever knew about that opportunity for what appears to have been a second opinion on this matter.  But it is clear that the opportunity for the Appellant to know about it was not even available on the face of the document, so no point arises upon that.  

18	The application for review was dealt with at some length by the Regional Chairman and in what appears to us to be careful detail.  She points out that the law provides a fourteen-day time limit for making an application, subject to the Tribunal’s discretion to extend time.  The Regional Chairman points out that she has read the letter of 2 November, re-read the original decision of the Industrial Tribunal and she noted that the events which gave rise to the original hearing were in 1982, some seventeen years before this application was being considered.  She took account of the fact that Dr Stranders no longer had any documentary records, that the Tribunal’s file had been destroyed together with the Chairman’s notes and documents relied on in the decision.  Both members of the Industrial Tribunal had retired from the Employment Tribunal and the Chairman herself had no detailed recollection of the case, although she remembered the actual case, as a case.  She then makes the following finding; 

“In that situation it seems to me that the new evidence put forward now cannot be weighed reliably against the evidence received by the Tribunal at the hearing in 1984 on which it made its primary findings of fact.  For that reason although, I accept that the new evidence in the shape of the 1994 letter from Dr Stranders could not have been known about at the time of the Tribunal hearing, it appears to me that this application is hopeless and has no prospect of success.  On this ground alone I would dismiss it.”

The Regional Chairman then goes on to deal with the subsequent ground, namely that the period of delay 

“makes it not in the interest of justice that there should be a review now.  There must be finality in litigation and it cannot be in the interest of justice to reopen a case after fifteen years.  I consider that on this ground as well, the application has no reasonable prospect of success.”

19	That, say Mr Watkins, was an error of law.  It is not right, he says, simply because years had gone by that in a case where there are implications of perjury a person should be able to escape its discovery simply because he has managed to keep it away from public gaze for a number of years.  It seems to us that the Regional Chairman directed herself to the law and the situation and carefully weighed the practicality of having a fair trial when evidence comes about which may cast light on evidence given at an earlier hearing.  We find it difficult to envisage how a subsequent Tribunal can assess any contradiction or inconsistency there may be without having both sets of evidence available so as to weigh the one against the other.  It seems to us that the assessment The Regional Chairman made about the difficulty of having effectively a fair hearing was one that she was entitled to come to and displays no error of law.  

20	Furthermore, it seems to us that the implication of allowing this application would be that Dr Stranders, something in excess of seventeen years after the event with no record to remind him, would have had to come to a hearing and recreate evidence and explain what was alleged to be an inconsistency.  That it seems to us must be, and was treated by the Regional Chairman as, a very good illustration of the principle and there must be finality in litigation.  It cannot be in the interest of justice to reopen a case after fifteen years in these particular circumstances.  As a general proposition, of course, that is unsustainable.  There may be cases in which the interests of justice do demand reopening.  But it is quite clear from the context of the decision that it was in the context of this particular case that the Regional Chairman was making that observation.

21	We have also considered the evidence which it was sought to call.  With the greatest of respect to Mr Watkins this does not it seems to us give rise to the dramatic conflict and inconsistency which could, even on the face of it, reasonably give rise to the grave allegation that Dr Stranders had committed perjury.  What Dr Stranders was saying in the later letter was that if he was thought, by another trainer, to have been wrong and if that trainer would have vouched his approval of the Appellants work, then he would have been prepared to adopt that.  We must bear in mind that that letter was written in the context of the Appellant’s seeking to gain his professional qualification.  Dr Stranders made the point in the letter that he did not wish to prevent the Appellant’s entry into General Practice, although he was personally unhappy with his performance.  That it seems to us on the face of it, is not inconsistent with the evidence before the Tribunal, it simply is additional to the evidence before the Tribunal.  Although, had it been before the Tribunal there may have been an argument that he could not have said that if he had taken such a serious view of the Appellants misconduct, we could well imagine Dr Stranders simply saying; “well I thought to be fair he was entitled to a second opinion.”  There was a point.  If this comment could have been raised at the original hearing, it would no doubt have given rise to arguments.  However, it does not seem to us to contain the seeds of the dramatic conflict and question mark over the integrity of Dr Stranders for which Mr Watkins contends that it demonstrates on its face.  It is often appropriate to look at the weight of the new evidence in considering whether or not to grant a review.  It seems to us that even if the Regional Chairman were incorrect in her two reasons, we would find it hard to accept that this evidence was sufficiently material to be such as to justify the reopening of the case.  That is simply our gloss upon the original decision that was taken.  

22	It is always a hard blow, we recognise, when in the field of medicine a doctor is dis-entitled, effectively by the word of a colleague, from qualifying and being able to practice the skills, science and arts, which he believes himself to have.  That is a consequence, it seems to us, which cannot be remedied by reviewing a decision or arguing that a decision should be reviewed which on the face of the decision of that Industrial Tribunal should not be reviewed.  We cannot say that there was any error of law whatsoever in the decision of the Employment Tribunal and accordingly this appeal must be dismissed at this preliminary stage.