EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 91
Lady Dorrian Lord Bracadale Lord Drummond Young	XA162/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in an appeal under section 37(1) of the Employment Tribunals Act 1996 by BS Appellant; against DUNDEE CITY COUNCIL Respondents: _______________

Appellant: Hay; Balfour & Manson LLP

Respondent: Howlin, QC; Gillespie Macandrew LLP

12 November 2013

[1] The appellant was employed by Dundee City Council (hereinafter referred to as "the respondents") in their Contract Services Department. He was dismissed from his employment on 23 September 2009. Thereafter he raised proceedings in the Employment Tribunal, claiming that his dismissal was unfair and seeking reinstatement. The Employment Tribunal reached a decision in his favour, deciding that he had been unfairly dismissed. They appointed a further hearing to determine the appropriate remedy. The respondents appealed to the Employment Appeal Tribunal, which reversed the decision of the Employment Tribunal, setting it aside and remitting to a freshly constituted tribunal to determine whether or not the respondents could reasonably have been expected to wait longer before dismissing the appellant. The appellant has now appealed to the Court of Session against the decision of the Employment Appeal Tribunal.

The factual background to the appeal
[2] The material facts found by the Employment Tribunal are as follows. The appellant, who was 55 years old at the time of his dismissal, had been employed by the respondents in their Contract Services Department for 35 years. The respondents have detailed procedures for managing sickness absence, which were the subject of findings in fact by the Tribunal. On 9 September 2008 the appellant had been absent from work on account of a foot complaint. That evening he was interviewed by the police in connection with a serious allegation made against him by a woman with whom he had had an affair. This resulted in difficulties in his marriage, which led to a separation from his wife. These events caused him to suffer from a nervous debility.

[3] The appellant visited his general practitioner and was signed off work, initially with "nervous debility" and thereafter with depression and anxiety. He remained off work on account of sickness from 9 September 2008 until his employment was terminated on 23 September 2009. He was charged with a serious criminal offence in September 2008, but on 28 May 2009 the charge was formally dropped. The appellant did not inform the respondents about the charge, but he did tell their occupational health adviser, OHSAS, once he had been referred to them by the respondents. The person principally involved in managing sickness absence for the respondents' contract at Services Department was a Mrs Wilma Hutchinson, the Administration Section Team Leader in that department. The appellant met Mrs Hutchinson informally on several occasions prior to the end of 2008 on days when he visited the office to hand in medical certificates from his general practitioner. He told her about his temporary separation from his wife and about the assistance that he was receiving from his general practitioner. Mrs Hutchinson told him that if the situation were unchanged after Christmas she would refer him to OHSAS. The appellant had not returned to work after the Christmas break, and on 15 January 2009 she decided to refer him to OHSAS. He attended his first appointment with OHSAS on 21 January, and on 28 January they issued a report to Mrs Hutchinson; this stated that there had been no improvement in the appellant's symptoms and that he would be absent for at least another eight weeks. Thereafter the appellant had a series of meetings with OHSAS, each of which was followed by a further meeting with Mrs Hutchinson. He continued to be signed off work by his general practitioner for periods of eight weeks at a time. By June 2009 Mrs Hutchinson was becoming concerned that the reports from OHSAS were all in similar terms with almost no change in content from one assessment to the next. She met the appellant on 3 June, and subsequently wrote to him expressing her view that the reports from OHSAS were of little value as an indication of progress; she added that she intended to request that the appellant should be reviewed by an occupational health doctor rather than a nurse, as had occurred previously. The appellant was reviewed again by OHSAS on 8 July. Mrs Hutchinson's concerns had not been conveyed to OHSAS, and the appellant was once again reviewed by a nurse, who stated that she was confident that he was now receiving the correct medical treatment; this was similar to earlier reports.

[4] In May or early June 2009 the respondents received information from one of the appellant's colleagues that suggested that he might have been charged with a criminal offence and that that was the reason for the appellant's sickness absence. On 17 June 2009 Mrs Hutchinson wrote to the appellant, requesting that he attend a meeting in accordance with agreed disciplinary procedures to investigate the allegation that he had been arrested in connection with a criminal offence. That meeting ultimately took place on 16 July 2009. It was attended by Mrs Hutchinson, and by two other representatives of the respondents, Mr Crozier, their Assistant Housing Repairs Manager, and Mr A Derby, their Personnel Officer. The appellant was accompanied by a trade union representative. Mr Derby questioned the appellant about his arrest and the nature of the charge that he had faced. The appellant stated that he had had a long-standing relationship with the complainer in the charge, and that when he had ended the relationship she had made allegations to the police. He became upset and broke down in tears. The appellant stated that the police investigation had been concluded and the charges had been dropped, and he showed a letter to that effect. The Employment Tribunal stated (paragraphs 27 and 28 of their judgment) that this investigatory meeting had not been handled as sensitively as it should have been, and that afterwards the appellant felt humiliated and worthless. After the charges had been dropped in May 2009 the appellant's general practitioner had noticed a dramatic improvement in his demeanour and outlook, but the meeting on 16 July caused his recovery to be set back. The respondents were informed that the appellant required further remedial counselling as a result of the meeting.

[5] A further meeting between the appellant and representatives of the respondents took place on 12 August 2009. The respondents were represented by Mrs Hutchinson and Mr Crozier, together with an Assistant Personnel Officer, Ms Jacqui Barr. The latest OHSAS report, dated 10 July, was discussed. The appellant explained that he was on sleeping tablets and antidepressants, and stated that he felt that he could not come back to work while he was on antidepressants. He stated that the meeting of 16 July had set back his recovery. At the end of that meeting the appellant was advised that he was being given a date to return to work of 14 September 2009, and that if he did not return to work on that date consideration would be given to his dismissal. He was told that there would be a review appointment with OHSAS prior to his return, and a phased return to work was discussed. The appellant was advised that he had a right of appeal if he felt that giving him a date to return to work was not reasonable or achievable. Mrs Hutchinson wrote the appellant on 13 August. She confirmed the outcome of the meeting held on the previous day and referred to the review by OHSAS that was to take place on 7 September. The letter continued:

"I must advise you that any period of absence is not conducive to the efficient operation of the service. I confirm that if you remain unfit to return to work beyond 14^th of September 2009 your employment will be at risk and consideration given to dismissal. You have the right to appeal against this final opportunity to return to work...".

The appellant did not appeal against the return to work date, but his counsellor wrote to the respondents to express concern about the way in which he had been treated by the respondents in respect of the criminal investigation.

[6] On 7 September 2009 the appellant was again reviewed by OHSAS. Once again he was assessed by an occupational health nurse; the respondents had not requested that he be reviewed by a doctor. She prepared a report dated 8 September, in which she stated that the appellant remained unfit to return to work although she was once again confident that he was receiving the correct medical advice and treatment. She further stated that she was unable to predict an actual return to work date, and that she had arranged for the appellant to be reviewed by an occupational health physician on 11 September. The appellant attended an assessment with an OHSAS consultant occupational health physician, Dr Jon Spencer, on 11 September. Thereafter Dr Spencer telephoned Ms Barr to discuss the appellant's fitness to return to work. He stated that the appellant's health was improving; that he was not a candidate for ill-health retirement; and that he would expect to return to work within 1 to 3 months depending on when his general practitioner signed him fit. Dr Spencer's report was dated 14 September. It stated as follows:

"[The appellant] has not yet fully recovered but his health is improving. He is probably not fit to return to work next week but I do not consider him to be permanently incapacitated and I would expect that he would be able to return to work within the next one to three months. I would be happy for him to return to work when his GP issues a final certificate.

I recommend a phased return...".

[7] The appellant did not return to work on 14 September. He telephoned Mrs Hutchinson on that day to say that he was still sick. He attended a further appointment with his general practitioner and was signed off for a further four weeks from 14 September. Mrs Hutchinson then arranged a meeting to take place on 23 September in accordance with the respondents' Managing Sickness Absence Procedure. The letter from Mrs Hutchinson informing the appellant of the meeting, which was dated 16 September, stated:

"As previously advised this meeting has been arranged to review your absence since the meeting on 13^th August 2009, when you were advised that if you remained unfit for work beyond 14^th September 2009 consideration may be given to dismissal. I can confirm therefore that further consideration will be given to terminating your employment at the meeting".

The appellant attended the meeting with his union representative. Mrs Hutchinson, Ms Barr and another representative of the respondents were also present. At the meeting the two OHSAS reports of 7 and 14 September were considered. Neither the appellant nor his representative had had prior sight of these. On this meeting, the Employment Tribunal found as follows (paragraph 42 of their judgment):

"Mrs Hutchinson stated that there had been a previous meeting on 12 August when the claimant had been given a return to work date of 14 September. It was noted that he had not returned. The claimant said that he was still attending his GP and his counsellor on a weekly basis. His current medical certificate would run out on 12 October. He said that his sleeping tablets were making him feel sleepy during the day and that he was going to ask his GP if he could reduce them. He said that he was still on 40 mg antidepressants. He reported that he had a hospital appointment on 1 October regarding a problem with his heel which was sore when walking and standing. He said that he was trying everything possible to get back to work but that he was not ready to come back. The claimant stated he was not any better, nor any further forward since the last meeting. There was no discussion of the claimant's medical certificate not being final or of him needing a final certificate from his GP".

[8] Mrs Hutchinson then adjourned the meeting to consider the position. She noted that the claimant had not returned to work on 14 September, and she considered that there appeared to be no future prospect of a firm date for such a return. Dr Spencer's report had stated 1 to 3 months, but Mrs Hutchinson thought that this was expressed as conditional upon the issue of a final medical certificate by the appellant's GP. The Tribunal then found (paragraph 43):

"Although she did not discuss this with the claimant or ask him about it, Mrs Hutchinson decided that the claimant had given no indication of whether or when a final GP certificate might be achieved. She did not make or ask OHSAS to make any further investigations or enquiries about this to ascertain when a final certificate might be expected. She concluded that the claimant had not discussed with his doctor when his return to work might be expected although she did not specifically ask the claimant about this either, in spite of Dr Spencer's report detailing his expectation that the claimant would return within one to three months., Mrs Hutchinson believed that he would not return in the 'short term' or the foreseeable future, that he would fail to return in one month and might be off for longer than three months and that there was 'no daylight at the end of the tunnel' ".

[9] Mrs Hutchinson had then considered that, because Dr Spencer had stated that the appellant was not permanently incapacitated and was expected to return to work once a final GP certificate was issued, he would not be eligible for retirement on the ground of ill-health. Permanent incapacity was necessary for that. She considered that a decision had already been deferred on five previous occasions and the appellant had been absent for more than a year with, she believed, no indication of a prospect of return. Mrs Hutchinson then made the decision to dismiss the appellant, and she reconvened the meeting and advised the appellant and his representative accordingly. She told him that he would receive 12 weeks' pay in lieu of notice, and that he had a right of appeal.

[10] The appellant was very distressed as a result of his dismissal, and he appealed against it. An appeal hearing was held on 28 October, chaired by Mr Ken Laing, the respondents' Director of Contract Services. The appellant attended with his union representative. Mrs Hutchinson was present, as was Ms Barr. Four points of appeal were raised at the meeting: first, that the content of the letter from Dr Spencer had not been fully taken into account; secondly, that insufficient consideration had been given to the appellant's length of service; thirdly, that insufficient consideration had been given to the possibility of ill-health retirement; and fourthly, that the respondents had not provided the appellant with enough support. Mr Laing decided that he should not uphold the appeal. On the first ground of appeal, he concluded that Mrs Hutchinson had given Dr Spencer's report proper consideration; in the report Dr Spencer had stated that he would expect the claimant to return within 1-3 months, but that there was no guarantee that this was going to happen. On the second ground, Mr Laing stated that he did not regard the appellant's length of service as particularly relevant and did not take it into account. On the third ground, Mr Laing considered that ill-health retirement was not an option because Dr Spencer had clearly stated that the appellant was not permanently incapacitated. On the fourth ground, Mr Laing considered that, in view of the involvement of OHSAS and the counselling that the appellant was receiving, there was no further support that the respondents could have offered. His conclusion was that the appellant's sickness absence had been going on for a significant length of time and that there was no immediate prospect of a return to work. He thought that sufficient time had been given for the appellant's recovery, that a line had to be drawn, and that the decision made by Mrs Hutchinson had been correct. He further stated that, if he had been satisfied that the appellant would be fit to return to work within one month, he would have allowed the appeal. The appellant brought a further appeal to the respondents' Personnel Appeals Sub-Committee, which consisted of elected members, but at a hearing on 15 February 2010 his appeal was not upheld.

[11] Before we leave the facts found by the Employment Tribunal, we should note that the question of what the appellant said at the meeting on 23 September was the subject of some controversy. The Tribunal recorded (at paragraph 61) that the appellant's evidence was that he never at any stage said that he was not feeling better. Ms Barr's contemporaneous note, however, quoted him as saying "Trying everything possible to get back to work. Not ready to come back. Not any better. Not any further forward since last meeting". The Tribunal concluded that on balance the accounts given by Mrs Hutchinson and Ms Barr were more likely to be reliable as were supported by contemporaneous notes. Mrs Hutchinson's note recorded that the appellant stated that he was not feeling any better, and she referred to this in her letter of 23 September confirming the outcome of the hearing. This remark not been challenged by the appellant at the time. The Tribunal noted that that remark conflicted with Dr Spencer's advice that the appellant's health was improving.

The relevant legislation
[12] As we have noted, the appellant brought a claim against the respondents for unfair dismissal. The relevant statutory provision is section 98 of the Employment Rights Act 1996, which sets out the manner in which a tribunal should consider the question of whether a dismissal is fair. First, the employer must demonstrate the reason for the dismissal and show that it is a reason falling within subsection (2) or some other potentially fair reason: subsection (1). The reasons stated in subsection (2) include a reason that relates to the capability of the employee for performing work of the kind that he was employed to do. Under subsection (3)(a), "capability" is assessed by reference to among other things the health or any other physical or mental quality of the employee in question. Subsection (4) then provides as follows:

"[Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case".

The decision of the Employment Tribunal
[13] The Employment Tribunal began by making detailed findings in fact (paragraphs 4-58 of its judgment). We have summarized these at paragraphs [2]-[10] above. Thereafter, after a discussion of the relevant law, the Tribunal held (paragraph 74) that the respondents had shown that the reason for dismissal was ill‑health which affected the appellant's capability for performing the work that he was employed to do. Capability was a potentially fair reason for dismissal under section 98(2). The Tribunal accordingly moved on to the critical question, that of reasonableness (paragraphs 75 et seq). They referred to the manner in which reasonableness must be approached; the question is not whether the members of the Tribunal would have dismissed the appellant, but is rather an objective test that does not permit the Tribunal to substitute their view for that of the employer. The test is the statutory one in section 98(4). The witnesses who had given evidence for the respondents, Mrs Hutchinson and Mr Laing, had each stated that the reason that they had decided to dismiss the appellant was a belief that the appellant would not return to work in the "short term" or "foreseeable future"; Mrs Hutchinson had stated that there was "no daylight at the end of the tunnel". It appeared that the precise expectation of the respondents, whether one month, three months or more, made a difference to whether they would decide to dismiss.

[14] The Tribunal then considered the procedure used by the respondents. They stated that a fair procedure was particularly important in ill-health cases and that the key features were consultation with the employee and the taking of appropriate steps to discover the true medical position: Daubney v East Lindsey District Council, [1977] ICR 556. They held that the respondents had consulted regularly with the appellant, but that the quality of the consultation was affected by the quality of the reports that were available. As to the reports, the Tribunal concluded that they were not within the range of reasonable ways in which a reasonable employer might have informed itself. Although there had been several referrals to OHSAS, on each occasion except the last the appellant was seen by a nurse who produced a report which, the Tribunal, observed, "could best be described as perfunctory"; each report said essentially the same thing, and none properly addressed when a return to work could be expected. Most of the reports stated that the appellant was unfit and that he would be absent for another eight weeks, but that it might be less than that. The Tribunal noted that the purpose of medical investigation is to enable the employer to discover the true medical position. Mrs Hutchinson had indicated in June that the available reports were all from nurses, and stated that she wanted input from a doctor. Despite this, the review on 8 July was carried out by a nurse, and once again the report failed to answer the critical question of when the appellant might return to work. An appointment with an OHSAS doctor, Dr Spencer, was only arranged on 11 September 2009. Dr Spencer indicated that the appellant's health was improving, and that while he was probably not fit to return to work the following week he was not permanently incapacitated; Dr Spencer would expect that he would be able to return to work within the next 1 to 3 months.

[15] The Tribunal held that no reasonable employer would have dismissed the appellant only nine days after receiving the indication from Dr Spencer that he expected the appellant to return in 1 to 3 months. (Dr Spencer in fact stated that he "would expect that [the appellant] would be able to return to work within the next one to three months"). Mrs Hutchinson had believed that the claimant was unlikely to return in the "short term" or the "foreseeable future", but in the absence of medical evidence to support that belief, and indeed in circumstances where the only medical evidence suggested a return within 1 to 3 months, the respondents had no reasonable grounds for the belief (paragraph 81). Mrs Hutchinson had indicated that Dr Spencer had stated that he would be happy for the appellant to return to work when his GP issued a final certificate, but there was no indication from the GP of any final certificate. In fact the GP had issued a series of four-week lines, the most recent of which expired on 12 October. The Tribunal commented that the final certificate is simply the last one, and a GP might or might not say on the certificate that it was the last. If the respondents had considered that the issue of a final certificate from the GP was an important qualification on Dr Spencer's estimate of the return to work time, they could have had OHSAS check with the appellant's GP whether the four-week line expiring on 12 October might be the last one, and if not when he envisaged that a final certificate would be issued. The appellant had stated at the meeting on 23 September that he was no further forward, but Dr Spencer had said that his health was improving. Where there was an inconsistency between the appellant's understanding of his condition and medical advice, the Tribunal held that no reasonable employer would disregard the advice and go ahead and dismiss an employee with 35 years' service without first clarifying the true medical position (paragraph 82).

[16] In relation to the appeal, Mr Laing had stated in evidence that if the appellant had required one further month he would have upheld the appeal. The Tribunal considered the fact that the claimant was still unfit at the time of the appeal hearing on 28 October. They thought that that did not give a reliable indication of what the position might have been if the appellant had not been dismissed, because it was clear from all of the evidence that the appellant had been very distressed as a result of the dismissal and that the dismissal could have caused a recurrence of symptoms which might not otherwise have affected him. Mr Laing had believed that the information from OHSAS had given "no immediate prospect" of the claimant's being fit to return to work, but no up-to-date medical advice had been sought from OHSAS or the appellant's GP to inform the appeal decision. Once again the assumptions made about the timing of the issue of a final GP certificate were not checked. Thus the appeal was affected by the same procedural unfairness as the original hearing. The same was true of the further appeal before elected members, which took place on 15 February 2010.

[17] Consequently the Tribunal held that the procedure adopted by the respondents in reaching its decision to dismiss the appellant was not within the range of reasonable procedures that a reasonable employer might have used, and consequently the dismissal was unfair. They went on to consider whether dismissal was within the range of reasonable responses that a reasonable employer might have adopted in the circumstances. The test for that was objective: Iceland Frozen Foods Ltd v Jones, [1983] ICR 17. The respondents were a large local authority employer; they in fact have approximately 8000 staff. The appellant was a long-serving employee with a previously good attendance record; he had 35 years' service, and was described by Mr Laing as "highly regarded". The appellant had been absent with depression for 272 days, and his health was improving. The respondents knew that the criminal charges that had led to his ill-health had been dropped, and he thought that his marriage might be retrievable. He said that he was no better at the meeting on 23 September, but that conflicted with Dr Spencer's advice that he expected a return in 1 to 3 months. Consequently there were no reasonable grounds for the conclusion that the appellant would not return in the short-term or the foreseeable future.

[18] In such cases, the Tribunal observed (paragraph 89), a question for the Tribunal is whether in all the circumstances the employer can be expected to wait any longer, and if so how much longer: Spencer v Paragon Wallpapers Ltd, [1977] ICR 301. The evidence had indicated that temporary staff were available to fill posts where required. These were paid the same amount as permanent staff, and the appellant was no longer receiving any pay. Neither Mr Laing not Mrs Hutchinson had given detailed evidence as to what the impact was of the appellant's absence. In all the circumstances the Tribunal concluded that no reasonable employer would have dismissed the appellant nine days after receiving Dr Spencer's verbal report; at the very least, no reasonable employer would have failed to wait until they had ascertained, via OHSAS, from the appellant's GP when he expected to issue a final certificate (paragraph 90). Consequently the dismissal of the claimant for incapacity on 23 September was not within the range of reasonable responses that a reasonable employer might have adopted (paragraph 91).

The decision of the Employment Appeal Tribunal
[19] The respondents appealed to the Employment Appeal Tribunal, which upheld their appeal, set aside the judgment of the Employment Tribunal, and remitted the case to a freshly constituted Employment Tribunal to determine, on the basis of the facts found and in the light of further submissions, whether or not the respondents could reasonably have been expected to wait longer before dismissing the appellant. If they answered that question in the negative, they were to find that the claimant was fairly dismissed, and vice versa.

[20] It is trite observation that in unfair dismissal claims the fact-finding exercise is a matter for the Employment Tribunal, and appeal only lies to the Employment Appeal Tribunal, and subsequently to this court, on matters of law: Melon v Hector Powe Ltd, 1980 SC 188; McBride v Employment Appeal Tribunal, [2013] CSIH 4. Consequently the critical issue is the legal validity of the Employment Tribunal's decision, and in particular whether their approach discloses an error of law, or can be considered perverse, either through a failure to take account of all relevant considerations, and only relevant considerations, or because it is a decision that a reasonable tribunal could not have reached. The Employment Appeal Tribunal criticized the Employment Tribunal's decision on a number of grounds. Their reasoning was challenged in detail by counsel for the appellant.

[21] Thus (at paragraph 24) the Appeal Tribunal criticized the Employment Tribunal for treating fairness as a procedural matter (see paragraph [14] above), and commented that a procedural failing may or may not render the dismissal unfair. In our opinion this criticism is misplaced. The reason for referring to procedure was to discover whether there had been an adequate consideration of the appellant's state of health. Procedure was not treated as an end in itself, but rather to ensure that the employer's decision had been informed by a proper consideration of the facts. Moreover, it is well established that investigation may be relevant to fairness, and that the opinion on such matters of an Employment Tribunal as a specialist first instance tribunal should be respected: Sneddon v Carr-Gomm Ltd, [2012] IRLR 820, at paragraphs 15 and 18. The Appeal Tribunal again criticized the Tribunal (paragraph 27) for approaching matters on the basis that the most recent certificate from the appellant's general practitioner would have been unclear on the question of whether it was a final certificate or not, since apparently such certificates contain a box in which the status of the certificate is indicated. (It should be noted, however, that the GP certificate was not available either to the Tribunal or to the Appeal Tribunal). The Appeal Tribunal further pointed out that a final certificate has certain implications for the employer's duty of care at common law and possibly the employer's insurance. Nevertheless, these matters are not in point in the present case. We consider that the Employment Tribunal was fully justified in stating that, for the purposes of determining whether the appellant was fit to resume work, the relevant GP certificate was the last one to have been issued. Consequently we consider this criticism to be misplaced.

[22] The Appeal Tribunal (paragraph 28) considered the Tribunal's criticism of the respondents' failure to make sufficient factual investigations. They stated, correctly, that there is no absolute rule that in the case of sickness absence dismissal will be unfair unless the employer has sought and obtained all relevant facts. They went on, however, to state that the overall fairness of the decision to dismiss is not determined by reference to whether or not there was something else that an employer might have done that might have produced a different result. In our opinion this is too strongly stated. There may be cases where the employer's investigation is simply inadequate, and that may be enough to render the decision to dismiss unfair. The Appeal Tribunal further criticized the Tribunal (paragraph 30) for in effect holding that an employer was not entitled to accept an employee's own account of the state of his health. We return to what the appellant said about his health at paragraph [29] below. We consider, however, that the relevance of what an employee says about his health may vary from case to case. Particularly in a case where the employee's health problem is of a psychiatric or psychological nature, what he says may not be wholly reliable, especially if it appears to be contradicted by medical evidence. We do not think that the Tribunal can be said to have applied an absolute rule that the employee's evidence about his state of health should be disregarded. The Appeal Tribunal further (at paragraphs 32 and 33) made a number of observations about the factors taken into account by the Tribunal. They commented on the meeting between the appellant and respondents' representatives in July 2009, which the Tribunal thought had set back the appellant's recovery, and stated that the respondents could not be blamed for such a setback and that its relevance was not clear, other than perhaps to point to a reason for the failure of the appellant's health to improve. We understand that that is precisely the significance that the Tribunal attached to the meeting; that point seems to us to be clear. The Appeal Tribunal further observed that the Tribunal had had regard to the temporary labour agreement for employees who were off sick and the fact that the appellant was no longer in receipt of salary. They stated that no account was taken of the OHSAS and organisational costs that would accrue as long as the appellant remained in employment. On this, we would observe that these are relatively minor matters, and that no evidence was led as to the costs involved: see paragraph 89 of the Employment Tribunal's judgment. For that reason we cannot see that this criticism is justified.

The applicable case law
[23] Nevertheless, we consider that in its approach the Employment Tribunal did not fully apply the legal principles that emerge from the cases in this area of law. We intend first to examine the two main authorities, Spencer v Paragon Wallpapers Ltd, supra, and Daubney v East Lindsey District Council, supra, and then to consider how the principles established in those cases were applied to the present case. In Spencer v Paragon Wallpapers Ltd, an employee had been off work for two months. The employers discussed with him their need for his services and the possible date of his return to work. With his consent they spoke to his doctor, who stated that the employee would require a further 4 to 6 weeks' rest before resuming work. The employers then informed the employee that they could not wait that long, and dismissed him. It was held by the industrial tribunal that the employers had acted reasonably within the meaning of the statutory provisions. The decision was upheld by the Employment Appeal Tribunal. In relation to the steps that had been taken by the employers, the Tribunal commented (at [1977] ICR 306D) that in the circumstances of the case there did not seem to be any more that the employers could usefully have done. The industrial tribunal had taken into account the nature of the illness, the likely length of the continuing absence, and the need of the employers to have the work performed, and had concluded that the employers had discharged the statutory onus put upon them. The Employment Appeal Tribunal commented that it was the function of the tribunal to determine whether the management had satisfied them that, having regard to equity and the substantial merits of the case, they had acted reasonably in treating the employee's state of health as a sufficient reason for dismissing him. It was not their function to take the management's decision for it, but only to decide whether the decision passed the foregoing test. They added that the case should not be interpreted as laying down any rule that employees might be dismissed when they were absent and likely to continue to be absent for another 4 to 6 weeks. Every case would depend on its own circumstances. They concluded (at [1977] ICR 307C):

"The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?"

That question is clearly of importance in the present case.

[24] In Daubney v East Lindsey District Council, the employee had been absent from work for long periods because of illness. Ultimately the employers' personnel director wrote to the district community physician asking him to indicate whether the employee's health was such that he should be retired on grounds of permanent ill-health. The physician asked another doctor to examine the employee, and on the basis of the latter's report he reported to the personnel director that the employee was unfit to carry out the duties of his post and should be retired on the grounds of permanent ill-health. Five days later the employee was given notice to terminate his employment. There had been no communication between the personnel director or any other representative of the employers and the employee between the receipt of the doctor's letter and the letter of dismissal. No representative of the employer asked to see the report by the doctor who had actually seen the employee. Furthermore, there was no evidence that it had been explained to the employee when he saw the examining doctor that what was under consideration was the future of his employment. There had been no clinical or physical examination, and the meeting with the doctor took the form of a discussion lasting five minutes or thereby. There also appeared to have been a discussion with the employee's family doctor, but there was no evidence that the employee knew about that. The industrial tribunal held that the employee had been unfairly dismissed, and the decision was upheld by the Employment Appeal Tribunal. The industrial tribunal had held that the decision to dismiss was unfair for two reasons: a failure to obtain information which ought reasonably to have been obtained before taking such an important step, and the failure to give the employee the elementary right to argue against that step or at least seek independent medical opinion.

[25] The Employment Appeal Tribunal commented that the first of these requirements had been interpreted as requiring employers to undertake medical assessments of their own, without relying on the opinion of their medical advisers. This was wrong, however; it was not the function of employers to turn themselves into a form of medical appeal tribunal, reviewing the opinions and advice received from their medical advisers. In the case under consideration the employers would have been entitled to act on the opinion of the district community physician, brief as it was, if they had consulted the employee and discussed the matter with him. The Appeal Tribunal added that the decision to dismiss or otherwise is not a medical question but a question to be answered in the light of available medical advice. It was therefore important that, when seeking advice, "employers should do so in terms suitably adjusted to the circumstances". Detailed information may be required before the employer can make a rational and informed decision as to whether to dismiss. It was not, however, necessary that the employers should have demanded a detailed medical report and should have questioned the district community physician. As to the industrial tribunal's second reason, the failure to allow the employee to argue against dismissal, the law was stated as follows (at [1977] ICR 571H-578A):

"Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done".

Such discussions may bring new facts to light, or the employee may wish to seek medical advice on his own account. Consultation and an opportunity to state the employee's case were, however, essential.

The present case
General approach
[26] Counsel for the respondents submitted that the Employment Tribunal had failed to appreciate the full significance of Spencer, namely determination of the stage when the employer cannot be expected to wait further before dismissing the employee. He submitted that this had not been noticed in the Employment Tribunal's statement of the law, and the result was an inadequate appraisal of the facts of the case. Counsel further submitted that the Tribunal had misunderstood Daubney in two ways: they had set too high a standard for the employer's obligation to take steps to ascertain the facts of the employee's illness, and they had failed to have regard to the obligation on the employer to consider what the employee has to say himself about returning to work. In our opinion there is substance in these criticisms.

[27] Three important themes emerge from the decisions in Spencer and Daubney. First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasize, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.

[28] As to the first of these issues, the question of whether the employer can be expected to wait longer was not directly addressed by the Employment Tribunal. They did, however, make reference to a number of factors that are relevant in this connection. It was noted that the respondents had a temporary labour agreement under which they could call on temporary staff to fill posts where required, and they were available to perform tasks that would otherwise be performed by the appellant. The pay of such staff was the same as permanent staff. Moreover, the Tribunal noted that the appellant had exhausted his entitlement to sick pay and was no longer receiving salary. It is no doubt true that the respondents would have incurred administrative costs and the costs of OHSAS referrals, as the Appeal Tribunal note, but the amount of these is not known and it seems inherently improbable that they will have been very large. Furthermore, it had been noted that the appellants were a large organization; it is obvious that such an organization can absorb costs better than an employer with fewer employees. Against all of these considerations, however, it would be necessary to set the unsatisfactory situation of having an employee on very lengthy sick leave. In such a case it must clearly be open to the employer to bring the employment to an end. The main problem with the Tribunal's approach to these issues is in our opinion that it did not expressly address the balancing exercise that the decision in Spencer requires. The nearest it came to do so is at paragraph 89, where reference is made to the availability of temporary staff and the appellant's not being paid salary. Nevertheless, the question itself did not receive an express answer.

[29] As to the second of the three issues, the Tribunal referred to the repeated consultations that the respondents had with the appellant. They also referred to his comments at the meeting of 23 September 2009 (see paragraph [11] above). At the meeting he indicated that he was still attending his GP and his counsellor on a weekly basis, and that he was suffering problems with sleeping tablets and was still taking antidepressants. He said that he was trying everything possible to get back to work but was not ready to come back. He was not any better, nor any further forward since the last meeting. Thus his attitude at that meeting was that he was receiving treatment but had not been making progress, despite attempts to return to work. Moreover, the meeting must be set in context. The respondents had arranged a meeting with the appellant on 13 August, at which he had been advised that if he remained unfit for work beyond 14 September consideration might be given to his dismissal. When the meeting of 23 September was arranged, the appellant had been told in advance that it was intended to review his absence since the previous meeting. In her letter intimating the meeting of 23 September, Mrs Hutchinson had specifically warned the appellant that at that meeting consideration would be given to terminating his employment (paragraph [7] above). Consequently the appellant was well aware that his continued employment was under consideration, and that the respondents were anxious that he should return to work as soon as possible; that was the point of the ultimatum to return to work by 14 September. Against that background the appellant's responses did not encourage any view that he would return to work soon.

[30] As we have mentioned, the employee's views on returning to work may be of great importance to the employer, in either a positive or a negative direction. In the Tribunal's opinion, although the views are set out at length, little if any weight seems to have been given to them. This contrasts with the emphasis placed on the views of Dr Spencer (throughout paragraphs 77-83 of the Tribunal's decision). It is noted that Dr Spencer had recorded that the appellant's health was improving, that he had stated that he did not consider that the appellant was permanently incapacitated, and that he would expect that the appellant would be able to return to work within the next 1 to 3 months. We note that these views do not indicate any likelihood of an immediate return to work. Furthermore, at the appeal hearing before Mr Laing held on 28 October the appellant was still not fit to return to work (judgment, paragraph 83). The Tribunal noted that the appellant was at that time very distressed as a result of the dismissal. It is not clear, however, what evidence there was to support that view. Overall, the appellant's own evidence does not suggest that he was in a position to return to work in the immediate future. That, it seems to us, was a factor that should be weighed against Dr Spencer's report. In the Tribunal's analysis, however, the appellant's views are largely ignored, and instead the emphasis is on the impact of Dr Spencer's report: see, for example, paragraphs 87 and 91 of the Tribunal's judgment. We consider that Dr Spencer's views should have been balanced against the evidence that came from the appellant in deciding whether the decision reached by the respondents was one that no reasonable employer could have made.

[31] As to the third issue, the obtaining of adequate medical advice, the Tribunal attached great importance to the views expressed by Dr Spencer and indicated that no reasonable employer, given those views, would have dismissed the appellant without further investigation of his medical state: see paragraphs 87 and 88 of the judgment. The obligation on an employer is only to take "such steps as are sensible according to the circumstances" (Daubney at [1977] ICR 572A-B). Dr Spencer's report was to the effect that the appellant's health was improving and he expected that the appellant would be able to return to work within 1 to 3 months. The appellant's subjective view, however, was that he was not improving. Against that background, it is difficult to see how further medical advice could clarify matters. The respondents had a medical opinion, and they had to balance that against the appellant's own view. For that reason we think that the Tribunal attached too much importance to the need to obtain a further medical opinion; that question was rather whether a reasonable employer, in view of Dr Spencer's report, the continuing note from the GP, and the appellant's own views, would have waited longer, or whether the decision to dismiss on 23 September was within the range of reasonable responses open to such an employer. That issue was not squarely faced by the Tribunal.

Length of service
[32] A further issue, raised by the Employment Appeal Tribunal and by counsel for the respondents, related to the relevance of the appellant's length of service. The Tribunal referred to length of service at a number of places in their judgment. It is recorded that both Mrs Hutchinson and Mr Laing were asked if they considered the appellant's length of service when making their decisions (paragraph 63). Both appear to have considered that length of service was not of great significance to them. The Tribunal clearly found length of service to be relevant. In their reasons they refer to it at paragraphs 82 and 86(ii), and in particular at paragraph 90, where it is recorded that the appellant had 35 years' service, and paragraph 91, where it is stated that no reasonable employer would fail to take proper account of length of service.

[33] In misconduct cases length of service will often be relevant, because if the employee has worked for a long time without misconduct that may be a strong indication that either he is unlikely to have done anything seriously wrong or what he has done can be treated as a temporary aberration: O'Brien v Boots Pure Drug Co, [1973] IRLR 261; Johnson Matthey Metals Ltd v Harding, [1978] IRLR 248. In cases involving dismissal on the ground of ill-health, the relevance of length of service is not quite so clear cut. In an appropriate case, however, it may show that the employee in question is a good and willing worker with a good attendance record, someone who would do his utmost to get back to work as soon as he could. The critical question in every case is whether the length of the employee's service, and the manner in which he worked during that period, yields inferences that indicate that the employee is likely to return to work as soon as he can. In the present case the Tribunal did not address this question; they merely treated length of service as a factor that in itself was automatically relevant. In our opinion that is not the correct approach. On the other hand, it may be said that length of service was clearly not one of the primary factors that influenced the Tribunal. Nevertheless, in view of the disposal that we propose for the case, we consider that this is a matter that merits reconsideration by the Tribunal.

Disposal
[34] For the foregoing reasons, we are of opinion that the judgment of the Employment Tribunal was lacking in four respects. First, the Tribunal did not expressly address the balancing exercise that the decision in Spencer requires; in particular, they did not directly address the question of whether in all the circumstances of the case any reasonable employer would have waited longer before dismissing the appellant. They express a number of criticisms of the respondents' decision and the manner in which it was reached, but they do not at any point squarely address and answer the foregoing question. Secondly, the Tribunal did not in our opinion give adequate weight to the appellant's own views about his ability to return to work. As we have indicated, these are important, and the opinion expressed in Dr Spencer's report should have been weighed against them in deciding whether the respondent's decision to dismiss was one that no reasonable employer could have reached. Thirdly, we are of opinion that the Tribunal attached too much importance to the need to obtain a further medical opinion. In this respect they overlooked the fact that the obligation on a reasonable employer is only to carry out such medical investigations as are sensible in all the circumstances. They should accordingly have considered what, if anything, any further medical examination might reveal, and they should have considered whether a reasonable employer, having Dr Spencer's report, the continuing note from the GP and the appellant's own views, might have concluded on 23 September that the appellant was unlikely to return to work in the foreseeable future and might therefore reasonably be dismissed on account of ill‑health. This issue is obviously closely related to the first issue that we have mentioned in this paragraph. Fourthly, the Tribunal should have considered whether the appellant's length of service was in fact relevant to the decision that the respondents had to make on 23 September and again at the appeal hearing on 28 October. In relation to all four of these issues, the discussion at paragraphs [26]-[33] above is clearly relevant. We would emphasize that the critical question is ultimately the first, namely whether any reasonable employer would have waited longer before dismissing the appellant.

[35] In these circumstances we propose to remit the case to the Employment Tribunal to consider the four issues raised in the last paragraph, and in the light of their answers to those issues to reconsider their decision of 13 December 2010. Ultimately, they must decide whether the appellant was fairly or unfairly dismissed, and in the event that they decide that the dismissal was unfair they must determine the appropriate remedy. We do not see any need to order that the remit should be to a reconstituted tribunal; we think that tribunal members can be trusted to reconsider the case in a wholly impartial manner.