MR. JUSTICE PHILLIPS: Mr. Daubney was one day short of his 57th birthday when, on the 13th November, 1975, he was dismissed by the East Lindsey District Council by whom he had been employed as principal assistant (building) surveyor. Previously, Mr. Daubney had been employed by the Horncastle Rural District Council in various capacities since 1959, and had reached the post of Surveyor and Public Health Officer. As the result of the local government re-organisation the Rural District Council ceased to exist on the 1st April 1974, and Mr. Daubney was offered and accepted employment with the East Lindsey District Council.
Mr. Daubney's employment came to an end as a result of a letter to him from the District Council dated the 23rd July 1975. It read:
"Dear Mr. Daubney,
As you are already aware the Authority has requested its medical adviser to submit a report on the state of your health together with his recommendation. I have now received that report from the District Community Physician and he has indicated that in his opinion the state of your health is such that you are unable to carry out the duties of your post and recommends that you be enabled to retire immediately on the grounds of ill health.
The Chairman of the Council has instructed me to write to you and indicate that the authority accepts the advice and recommendation of the District Community Physician and that action is being taken to enable you to retire immediately. In view of your length of service with this and the predecessor authority you would, under the Contracts of Employment Act, be entitled to 8 weeks notice. In these circumstances I am giving you notice that your service with this authority will terminate on 30th September 1975.
I have had the Lincolnshire County Council calculate your pension entitlement based on your salary over the last year up to 30th September 1975. I am informed that subject to check your entitlements would be:-
| Pension to 65 years of age |
£2235.59 |
| Pension after 65 years of age |
£2193.09 |
| Lump Sum Payment |
£3455.15 |
I am taking the necessary steps to initiate action on these lines."
The date of termination, the 30th September 1975, stated in that letter was later extended by agreement to the 13th November.
Mr. Daubney had unfortunately been ill, and the medical certificates submitted on his behalf were recorded as giving the following particulars:
| 28th to 30th April, 1975 |
Mild Stroke (as per medical certificate) |
| 1st to 31st May, 1975 |
Mild Stroke (as per medical certificate) |
| |
|
| 1st to 30th June, 1975 |
General debility |
| |
|
| 1st to 31st July, 1975 |
General debility |
| |
|
| 1st to 31st August, |
1975 Anxiety (as per medical certificate) |
| |
|
| 1st to 30th September, |
1975 (as per medical certificate) |
The District Council being concerned whether Mr. Daubney was likely to be able to continue in their employment, Mr. Lees, their Director of Personnel and Management Services, had written to Dr. R. D. Haigh, the District Community Physician, on the 27th June 1975, as follows:
"Dear Dr. Haigh,
I wonder whether you would be good enough to let me have a report on the state of health of Mr. G. B. Daubney of Scotney Bargrove, Tattershall Road, Woodhall Spa.
Mr. Daubney is Principal Assistant (Building Surveying) in the Housing and Estates Department and had been absent for some time following his admission to hospital. The post entails work both in the office and out in the field and entails a considerable amount of travelling.
Perhaps you would be good enough to indicate whether you feel that Mr. Daubney's health is such that he should be retired on grounds of permanent ill health."
Dr. Haigh asked Dr. O'Hagan, of the Lincolnshire Area Health Authority, to examine Mr. Daubney, On the 18th July 1975, Dr. Haigh wrote to Mr. Lees as follows:
" RE: Mr. G. E. Daubney, Scotney Bargrove,
Tattershall Road. Woodhall Spa.
Thank you for your letter of the 27th June 1975, regarding the above-named employee.
I asked Dr. O'Hagan of Horncastle to examine Mr. Daubney and have now received his report. Because of his remarks, I feel that Mr. Daubney is unfit to carry out the duties of his post and should be retired on the grounds of permanent ill health."
Five days later, on the 23rd July 1975, Mr, Daubney was given notice to terminate his employment in the terms set out above.
There was no communication between Mr. Lees, or any other representative of the District Council, and Mr. Daubney between the receipt of Dr. Haigh's letter of the 18th July and the letter of dismissal of the 23rd July. Neither Mr. Lees, nor any other representative of the District Council, saw or asked to see a report by Dr. O'Hagan. There is no finding in the Decision of the Industrial Tribunal about what was said to Mr. Daubney by Mr. Lees, or any other representative of the District Council, when arrangements were made for him to see Dr. O'Hagan. Obviously, he must have known that the purpose of the meeting was one connected with his state of health, but there has been no suggestion upon the hearing of the Appeal that it was explained to him that what was under consideration was the future of his employment by the District Council. According to him, there was no clinical or physical examination, and the meeting with Dr. O'Hagan took the form of a discussion for five minutes or so. Dr. O'Hagan was well known to Mr. Daubney, and in fact they worked together.
The report by Dr. O'Hagan to Dr. Haigh (which, as we have said, was not at any material time in the possession of any representative of the District Council) was in these terms:
"Mr. George Daubney, Woodhall Spa
I have worked with Mr. Daubney for many years. In recent years, just before, during and since re-organisation, he has undergone a change of personality of a fairly serious degree. The symptoms of stroke illness now appear to have cleared, leaving him lacking in confidence and unsure of recent memory.
In my view, it would be likely to be harmful for him to return to duty in the foreseeable future and not in the interests of East Lindsey.
In the circumstances, therefore, though I shall be sorry to lose his services and to a less extent, his company in the office, I feel I have no alternative but to recommend his retirement upon Health Grounds. His family doctor concurs in this."
There was no finding, and no evidence is recorded to suggest, that Mr. Daubney knew at the time of the report by Dr, O'Hagan that his family doctor was being consulted.
A report by Dr. Wallace of the Horncastle Medical Group, dated the 2nd November 1976, is in these terms:
"Re: Mr. George Edward DAUBNEY
Scotney Bargrove, Tattershall Road, Woodhall Spa.
This man has been a patient of mine since January 1964.
His health was very good until May 1972. Since that date I have seen him professionally 33 times until April 1976.
He has suffered from acute anxiety symptoms due to an 'upset' in his work. His condition of anxiety gradually worsened until in May 1975 lie was admitted to St. Georges' Hospital, Lincoln, suffering, from loss of use of the right limb associated with aphasia. Full clinical examination revealed no organic disease and his signs and symptoms were considered to be functional, caused by the considerable stress and strain due to his problems. He eventually responded to treatment with tranquilizers and anti-depressants.
A Dept. of Health and Social Security Doctor on 26.11.75, found him 'physically fit, a man of intelligence and integrity, always accustomed to responsible work. '"
On the 22nd January 1976, Mr. Daubney complained to an Industrial Tribunal that he had been unfairly dismissed. The grounds of his application amount to a complaint of constructive dismissal. In summary, he was saying that he was being treated by the District Council in a manner which he found degrading, demoralising and upsetting, and which had resulted in a detrimental effect upon his health to such an extent that his early retirement on the grounds of ill health had been approved. His complaint was that he was denied all responsibility and treated as a menial employee. That part of his application ends: "It is my contention that I was deliberately treated unfairly in order that I would have no option but to resign." In other words, it was tantamount to dismissal. The District Council, by its Notice of Appearance, stated the grounds upon which it intended to resist the claim as follows:
"The dismissal was fair in that the applicant, by reason of his "bad state of health, was incapable of performing the work which he was employed to do. There is nothing in the application contrary to this submission."
The case for Mr, Daubney before the Industrial Tribunal was presented somewhat differently from the way in which it is set out in his application. The complaint, putting it generally, was that the District Council had not acted fairly in dismissing him on the ground of ill health; especially in the manner which it did so. In the result, this change of front must have made difficulties both for the District Council and for the Industrial Tribunal, because it cannot have been easy to know, except as the case unfolded, precisely what was the complaint which was being put forward. To some extent difficulties of this kind are inescapable from the informal nature of proceedings before Industrial Tribunals; but it is important to bear the point in mind when considering the form of the decision.
An Industrial Tribunal sitting at Lincoln on the 18th November 1976, by a Decision given on that day (entered the 29th November 1976) found that Mr. Daubney had been unfairly dismissed, and adjourned the question of remedy for later consideration. From that Decision the District Council has appealed.
The Industrial Tribunal was very critical of the letter of the 27th June, from Mr. Lees to Dr. Haigh, which they considered to be most unfortunately phrased. They took the view that Dr. Haigh was being invited, if he could professionally do so, to certify that Mr. Daubney should be retired on grounds of ill health, whereas in the opinion of the Industrial Tribunal more neutral language should have been used. For this and other reasons the Industrial Tribunal were critical of the District Council as being unduly hasty in their desire to dispose of the services of Mr. Daubney and wishing to see him retired on the ground of ill health. Nonetheless, the Industrial Tribunal reached the conclusion that the dismissal was based upon Dr. Haigh's expressed opinion, and they rejected the view that the District Council was simply looking for a specious excuse as a means of getting rid of an employee who was not always on good terms with his chief. Accordingly they found that the reason for the dismissal was one falling within paragraph 6(2), relating to the capability of Mr. Daubney to perform work of the character which he was employed to do. However, the Industrial Tribunal found that the District Council should have made further enquiries of Dr. Haigh in order to ascertain whether in fact there had been an examination of Mr. Daubney by Dr. O'Hagan, and, if so, what the prognosis was. They continue in the Decision (paragraph 10): "No medical evidence whatever was in the possession of the Local Authority; they were merely content to accept the succinct wording of Dr. Haigh's letter and use it as a reason for immediate dismissal." The actual ground of the Industrial Tribunals decision seems to be set out in paragraph 12.. They say that the manner of the dismissal was "patently open to criticism". In substance they give two reasons for this view: first, the District Council had failed to obtain the information which they ought reasonably to have obtained before taking such an important step as dismissal (i.e. a full medical report); and, secondly, they had dismissed Mr. Daubney without giving him the elementary right either to contend against such a step or at least to seek an independent medical opinion.
The first of these reasons has caused alarm to the District Council for it has been interpreted as requiring employers in their position to undertake a medical assessment of their own, and disentitling them from relying upon the opinion of their medical advisers. We are prepared to accept Mr. Yorke's submission that it is not the function of employers, any more than it is of Industrial Tribunals, to turn themselves into some sort of medical appeal tribunal to review the opinions and advice received from their medical advisers. And on the whole we think that the District Council would have been entitled to act here on the opinion of Dr. Haigh, brief as it was, if they had consulted Mr. Daubney and discussed the matter with him. We would merely add this caution. While employers cannot be expected to be, nor is it desirable they should set themselves up as, medical experts, the decision to dismiss or not to dismiss is not a medical question, but a question to be answered by the employers in the light of the available medical advice. It-is important therefore that when seeking advice employers should do so in terms suitably adjusted to the circumstances. Merely to be told, as the District Council were told, because that is the question they asked, that an employee "is unfit to carry out the duties of his post and should be retired on the grounds of permanent ill health", is verging on the inadequate, because the employer may well need more detailed information before being able to make a rational and informed decision whether to dismiss. Nonetheless, it seems to us on the whole that the Industrial Tribunal required overmuch of the District Council when saying that they should have demanded a detailed medical report, and should have questioned Dr. Haigh about it.
We turn to the second reason relied on by the Industrial Tribunal. There have been several decisions of the Appeal Tribunal in which consideration has been given to what are the appropriate steps to be taken by an employer who is considering the dismissal of an employee on the ground of ill health. Spencer v. Paragon Wallpapers Ltd. [1976] IBLR 373 and David Sherratt Ltd. v. Williams (83/1977) are examples. -It comes to this. 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. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done.
In the present case, Mr. Daubney was never consulted and the matter never discussed with him. Mr. Yorke submits that consultation and discussion is unnecessary where it can be seen that it will yield no useful result. In the first place, it is only in the rarest possible circumstances that it is a good answer to a failure to consult and discuss that discussion and consultation would have been fruitless. Secondly, it does not seem to us to be in the least clear that this is such a case. Mr. Daubney had had long service in local government, and had reached a high position. Local government re-organisation had resulted in his being employed in a subordinate capacity. It is plain that he was not happy in the circumstances in which he found himself, although he wished to remain in the employment of the District Council. It appears from the documents exhibited to the case that his illness was, in part at least, functional in nature, and it is probable that the illness and his conditions of work were connected. This seems to us to be precisely the kind of case where sensitive consultation and discussion might -nobody can say that it would - have resulted in some solution being found to his position consistent with continued employment by the District Council. It is true that his recovery, which followed his departure from the District. Council, may have been connected with that departure; but it is not in the least sure that had the matter been dealt with in the way we should have expected it to have been, no way out of the problem could have been found. It is not necessary to say that it would have been, but it might; and we are abundantly satisfied that this is not a case where it can be said that discussion and consultation would have been superfluous.
We are thus in entire agreement with the Industrial Tribunal about their second reason, and it seems to us in all the circumstances of the case to be sufficient by itself to justify the decision in favour of Mr. Daubney. The appeal accordingly is dismissed.
P. A. Haswell. 9 Strickland Close, Leeds, LS17 8JY VERBATIM REPORTER AND TAPE TRANSCRIBER
