Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1695/03

CLAIMANT: Carol Ferguson

RESPONDENT: 1. South Eastern Education & Library Board

2. John Mason

3. Mr McGinnity

4. The Governors of the Good Shepherd Primary School, Poleglass

DECISION

The unanimous decision of the tribunal is that:

1. The second named respondent John Mason, the third named respondent Mr J McGinnity and the fourth named respondent the Governors of the Good Shepherd Primary School, Poleglass be dismissed from the proceedings.

2. That the claimant's complaint of unfair dismissal application be dismissed.

   Constitution of Tribunal:

   Chairman: Mr M Davey

   Members: Mr R Robinson

   Dr V Eakin

   Appearances:

   The claimant was represented first by Ms S Greene and then by Mr T Wright both of NIPSA.

   The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by the Solicitor for the Education & Library Boards.

   REASONS

1. The parties agreed that the appropriate respondent to the proceedings was South Eastern Education & Library Board and that all other respondents could be dismissed.

2. The claimant, in her originating application, alleged unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996. The issue for the tribunal was whether the reason for the claimant's dismissal fell within the reasons set out in the relevant legislation and whether, in the circumstances of the case, the employer had acted reasonably.

3. There was no real dispute about the facts. The claimant was employed as a classroom assistant at the Good Shepherd Primary School, Poleglass. Her work record had been satisfactory. In February 2003, the claimant submitted a medical certificate indicating that she would be off work due to sickness as from 19 February 2003. The certificate extended to 8 April 2003. In or about the middle of March it was reported to the Headmaster by one of his teachers that the claimant's husband had described her as having been attending evening classes during this period of sickness. The Headmaster was concerned and raised his concerns with the relevant official of the respondent Board (the Board). That official wrote to the claimant requesting her to return to work the following week with the indication that if she disagreed with that determination she could appeal. She did so. She was referred for medical examination by Doctor Glasgow, described as an independent occupational physician. The claimant attended for examination accordingly. At the time of this examination Doctor Glasgow had available to him a medical certificate from the claimant's General Practitioner and was aware that she was due to see a specialist. Doctor Glasgow reported to the Board that the claimant was suffering from a significant affective (mood related) disorder both in relation to her current circumstances and her past history. He considered her condition to be such that he did not see that it would speedily resolve and further considered that she would remain unfit for work for the foreseeable future. His final conclusion was that her medical condition would persist for the foreseeable future and that this would cause her significant difficulty providing regular, reliable or sustained attendance at work.

4. The Board informed the claimant of these findings and indicated that they were proposing to terminate her employment in the future and advising her of the consequences if they did so. The letter, of 10 April 2003, went on to indicate that if the claimant disagreed with the medical advisor's opinion the matter could be appealed. Details of how to appeal were given. The claimant exercised her right of appeal by letter dated 29 April 2003.

5. The Board arranged, pursuant to the appeal procedure, for a further medical examination by a Doctor Jenkinson. Pursuant to the procedure the Board advised the claimant that if she objected to the medical advisor she could do so. No objection was raised. However, a letter was sent by her trade union requesting an immediate lifting of the threat of dismissal and advising that the claimant would not be attending the appointment arranged. It was indicated that she would probably be well enough for an independent medical consultation at some stage and that, in the meantime, she might be prepared to allow the Board to obtain a report from her GP. The union requested a copy of Doctor Glasgow's report. This was sent by the Board with a letter of 8 May 2003 which recommended that the claimant attend the independent medical examination which would allow her the opportunity to make

   representations concerning the medical report. It was also indicated that a copy of the union letter would be forwarded to Doctor Jenkinson for his consideration. The union were advised that the Board would receive a report from Doctor Jenkinson and would then notify both the union and the claimant of the outcome. This letter was copied to the claimant herself. The union responded with a letter indicating that they were in the process of obtaining medical evidence which they intended to use and indicating that the proposed appointment with Doctor Jenkinson for the following day would have to be postponed. The Board agreed to this postponement by letter of 13 May. That letter advised the union that written submissions, including supporting medical evidence, could be made to the independent medical advisor and that all written submissions would be provided to him by the Board. The letter further indicated that at the examination the claimant would have the opportunity to make all representations in support of her appeal. The medical examination was re-arranged for Thursday 5 June. This information was conveyed separately to the claimant as well as to the union and the claimant was advised that if she wished to discuss the matter she could contact the relevant Board official by telephone. No contact was made by the claimant but on 3 June the claimant's union responded to the Board's letter indicating that the claimant would be perfectly willing to attend an independent medical examination 'at the appropriate juncture provided the examination is to be for a meaningful purpose'. The letter concluded with the information that the union official had advised the claimant not to attend the examination. The claimant's evidence was that she was concerned that if she had attended for examination she would have had a panic attack such as she had had when she had been to see Doctor Glasgow. She therefore sought that her union would offer her medical records with a view to slowing the process down. Slowing the process down seemed to be the claimant's over-riding concern. The tribunal accepted this evidence.

   Following the claimant's non-attendance for examination the Board wrote to her indicating that the appeal had not been upheld and that her employment would be terminated on health grounds.

6. The real issue for the tribunal was whether, in the circumstances, the employer had behaved reasonably. There was no suggestion on either side that there was any legal issue involved. The matter was one of fact. The Board was faced with a medical opinion that the claimant would be unfit for work for the foreseeable future. In the face of this information they had proposed the claimant's dismissal on health grounds. In the tribunal's view that was a reasonable reaction. The agreed procedures provided for an appeal against the medical examiner's opinion. That appeal was offered. The Board arranged for a further examination. The reaction of the claimant's union to this was to advise that the claimant would not be attending the appointment. The reason given was that it was contra indicated by her reaction to the appointment with Doctor Glasgow and an indication was given that she would probably be well enough for independent medical consultation in the future. The letter also opened the possibility of obtaining a report from her GP. The Board responded advising that attendance at the examination was recommended. However, following a further letter of 13 May which indicated that the claimant was in the process of obtaining medical evidence which the union intended to use on seeking a postponement of the appointment a postponement was in fact arranged. No medical evidence was put forward either with the letter of 7 May from the union or with the letter of 13 May. Immediately prior to the appointment with Doctor Jenkinson the union wrote again merely stating that the claimant was perfectly willing to attend an independent medical examination though this willingness was qualified by indicating that it would be 'at the appropriate juncture' and 'provided the examination was to be for a meaningful purpose'. No medical evidence was submitted with this letter either. In the tribunal's view it was reasonable for the Board to arrange for the second medical examination as, indeed, is provided for in the agreed procedures. The tribunal also considered it reasonable for the Board to expect the claimant to attend at any re-arranged meeting unless a good reason to the contrary was shown. In this case the suggested reason was that attendance was contra indicated because of the claimant's reaction to the previous examination. No medical evidence was provided to support this assertion when it was originally made; a hint of medical evidence being forthcoming was made in the letter of 13 May but in the final letter from the union no reference is made to any medical reason for the claimant's non-attendance, the letter merely concluded with a statement that the union official had advised the claimant not to attend. In such circumstances the tribunal considered that the Board had a right to expect a proper reason for postponing or deferring the examination. The claimant was very clear that she wanted the examination delayed but that, in the tribunal's view, is not enough. A medical examination was appropriate; it had been arranged; it was reasonable to expect that anyone who wished to re-arrange it should provide a reason for so doing. No such reason was provided. The claimant in her evidence to the tribunal said she had had a panic attack at the previous examination and that she was afraid she would have another if faced with a further examination at that time. However, neither she nor anyone on her behalf made this clear to the Board.

   It was suggested on behalf of the claimant that the Board were aware that she had been in an emotional state at the time of the previous examination and they were. That, however, is a far cry from being a clear indication that a further examination is contra indicated. It was suggested that the Board had not given any precise information as to how or where any medical evidence or submission could be made. It is possible that, had the claimant been an unrepresented and inexperienced person that might have increased the Board's responsibilities but in this case the claimant was being represented by an experienced union official in a major union. In any event the Board had indicated that written representations including medical evidence could be made direct to the medical examiner and that any written submissions would be forwarded by the Board. It was suggested that the claimant had made various offers in her letters about further information and had held out the possibility of an independent examination. However, the prospect of an examination was always on the basis that it should be at some 'appropriate' time with no indication being given as to when that might be. Her offers of information were qualified, the nature of any medical evidence which might be forthcoming, apart from the claimant's GP records, was never defined. The Board was in the position of having arranged a medical examination in a proper way, of being asked to re-arrange it on the basis of a mere assertion of medical problems and then being faced with a further request, not to say demand, for postponement without any supporting evidence to back the request. The tribunal does not consider it unreasonable for the Board to expect the examination to proceed. Once having proceeded the Board was then faced with having no further evidence of the claimant's condition apart from the original opinion that her health was such that she would be unable to work for the foreseeable future. The tribunal considered that the original proposal for termination was reasonable in the face of that opinion and it finds that the actual termination, when left with nothing other than that opinion, was also reasonable. Accordingly, the application falls to be dismissed.

   Chairman:

   Date and place of hearing: 20 and 21 June 2005 and

   18 October 2005, Belfast.

   Date decision recorded in register and issued to parties: