Author: Joe

Appeal No. EAT/471/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 October 1992
	Judgment delivered 3 November 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R H PHIPPS

	MR S M SPRINGER MBE

SEEBOARD PLC	APPELLANTS

MR B FLETCHER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr P Stewart
(of Counsel)
Mr M A Nagle
Solicitor
Seeboard Plc
Grand Avenue
Hove
East Sussex
BN3 2LS 

For the Respondent	Ms P Robinson
(of Counsel)
Messrs Atkins Hope
Solicitors
74-78 North End
Croydon
CR9 1SD

HIS HONOUR JUDGE HULL QC:      This is the unanimous decision of the Appeal Tribunal, on the appeal of Seeboard Plc from the majority Decision of the Industrial Tribunal sitting at London (South) on 13th and 14th June 1990 by which the Industrial Tribunal held that Mr Fletcher had been unfairly dismissed.  Mr Fletcher had been employed by the Appellant or its predecessor, the South Eastern Electricity Board, for about five years as a cable jointer and thereafter in other short-term tasks until 31st December 1989, when his employment was terminated, the Appellant having given him notice.

	There is a long unanimous statement by the members of the Industrial Tribunal setting out the facts and the substance of the evidence adduced before them, on which we draw extensively and gratefully for the purpose of this decision.

	Throughout his employment with the Appellant, Mr Fletcher suffered a certain amount of ill-health.  In April or May 1988 he developed psoriasis, a serious skin disease, and was away from work as a result for about three months.  On 3rd June 1988 the Appellant's doctor, Dr Stanley, reported that Mr Fletcher was suffering from extensive psoriasis, which might become worse if his work involved over-exertion and sweating.  Dr Stanley felt, however, that Mr Fletcher would be fit to resume if he could be reallocated to work that avoided excessive heat production, and suggested meter reading as a possibility.

	By 27th June 1988 Mr Fletcher's own doctor, a General Practitioner, had given permission for him to return to work and he reported to the Appellant on that day.  There was no evidence before the Industrial Tribunal of any written report by the GP, or any evidence about whether the GP had considered the suitability of any particular work which Mr Fletcher might be asked to do.  The Appellant did not give Mr Fletcher any work on 27th June but sent him home.  On the same day Mr Lowe, the Appellant's engineering manager, wrote Mr Fletcher a letter which is at p.11 of the bundle of documents, recording the discussion which had taken place that day.  Mr Lowe wrote -
	"... Although your own Doctor has indicated that you may return to work, the Board's Doctor, Dr K Stanley, believes that your psoriasis condition would become worse if you were engaged on work which involves over exertion and sweating.  Dr Stanley believes that your condition would not allow you to do your job as a Jointer's Mate, but that if we could reallocate you to work that avoids excessive heat production, you could satisfactorily return to work.  He indicated that in saying this he had in mind a job such as meter reading.

	 I am actively pursuing whether we could find you a suitable job and I will write to you again as soon as I have an answer. ..."

	Mr Lowe, in due course, gave evidence to the Industrial Tribunal in the course of which he said that he would have considered it irresponsible to put Mr Fletcher at risk by trying him out at his old job.  Mr Lowe had had involvement with psoriasis cases that went on for years, and it was a risk that he could not take.

	To resume the history of the matter, Mr Fletcher remained off work until September 1988.  While he was at home he was visited by Mr Ward-Lee, a senior engineer who explained that there was no longer any vacancy for Mr Fletcher as a cable jointer because, in reliance on Dr Stanley's advice, a replacement jointer had been appointed.

	On 22nd September, Dr Stanley reported again (docs. bundle p.12).  Dr Stanley said -
	"... His skin condition has now cleared and his General Practitioner has declared him fit to return to work.

	 Although he is keen to return to his job as a Cable Jointer, there remains a risk of a flare-up of his skin condition particularly if he becomes hot and sweating.

	 On balance it would be preferable if he were employed in work where his skin is unlikely to be effected by heat or any other contaminance.  (sic)"

	On his return to work Mr Fletcher was given temporary work clearing bushes and cutting trees and then outdoor work sweeping yards.  He enjoyed the clearing work but found sweeping yards humiliating, and he became depressed and had to go home sick.

	It appears that a short time after this the Appellant and Mr Fletcher came to the conclusion that Mr Fletcher would be able to return to his work as a cable jointer, this being work in which vacancies occurred from time to time.  There is a document at p.13 of the bundle of documents recording a further meeting between Mr Ward-Lee and Mr Fletcher with others, including a trade union representative, where this belief was mentioned.  However, it turned out that Dr Stanley's opinion was against this course.  There is a note by a Mr Flack of the Appellant at p.16 of the documents bundle, recording another meeting which took place on 9th November, which makes the position clear.

	At the meeting of 9th November, Mr Bristow, a full time official of Mr Fletcher's Trade Union, and Mr Mason, the local works committee representative, were both present as was Mr Burton, the foreman.  Mr Flack note records the following -
	"1Fletcher said he refused to do menial tasks such as cleaning the yard ... .

	 2The tasks Fletcher could not do were discussed ... jointing ... fitting - for medical reasons. Lifting precluded stores work.  There were no vacancies on sub-station inspection.

	 3Mr Bristow suggested street lighting.  I arranged with S Young for a two week trial.

	 4Meter reading was suggested - this Fletcher refused.

	 5 Mr Bristow told Fletcher that if the street lighting trial failed there would be nothing that could be seen on offer.

	 6See letter to Fletcher."

	On 15th November (p.17 of docs bundle) Mr Flack wrote to Mr Fletcher confirming the result of the meeting.  He said -
	"... In view of both your Doctor's and the Board Doctor's assessment of your medical condition, you are unable to carry out work in most of the engineering trades as these would create a certain amount of "sweating" which could lead to a recurrence of your problem.

	 You will recall at the end of the meeting, I agreed with Mr Bristow and yourself, that I would use my good offices to endeavour to arrange for you to spend a short period on trial on Public Lighting duties.

	 I am pleased to tell you I have been able to arrange such a trial with our Marketing Section and Mr S Young the Principal Engineer Marketing is arranging for you to spend two weeks commencing Monday, 21st November 1988 with Public Lighting staff based at Euston Road, Croydon.

	 I must stress to you that it is most important that you apply yourself during this trial period and demonstrate to the Engineers, Foremen, and the other staff involved in this work that you are both interested and willing to apply yourself to the work, which I must tell you is in the forefront of Public Service and therefore open to scrutiny from the public.

	 If you fail in this trial on Public Lighting work, I am afraid I am at a loss to know what part of the Board's activities would suit your medical condition and still allow you to continue satisfactorily working, and as you know we discussed this at great length with Mr Bristow, and I will review the whole position at the end of the trial."   

	On 10th November Dr Stanley reported on Mr Fletcher again.   He said -
	"... His skin condition has now settled and he is medically fit for any work that does not result in sweating or exposure to chemicals or other agents that might cause an irritation to his skin.

	 I understand that he has been carrying out odd jobs, such as sweeping and weeding carparks.  He is obviously concerned about his future and this type of work which is obviously below his capabilities as a semi-skilled worker has resulted in a degree of depression.  I hope that suitable work may be made available to him."

	Mr Fletcher duly began work with the Public Lighting department on November 21st.  The work involved changing street lamps, erecting lamp standards, digging holes and cleaning bollards and lampstands.    After the two week trial had passed, he remained with the department and continued the work.

	On 3rd January 1989 a permanent post of public lighting attendant was advertised.  The job description specified a shift pattern of one week nights and one week days in the summer, and one week nights and two weeks days in the winter.   Mr Fletcher applied for the job but was unsuccessful.  He was considered insufficiently experienced, but was advised to apply again in the summer.

	For the first few weeks that Mr Fletcher was engaged on public lighting he worked during the days only; then his foreman, a Mr Smith, suggested that he should try night shifts, because the permanent job, when it arrived, would involve night shifts.  Mr Fletcher agreed but he was not happy working night shifts.  He remained with the department until July 1989 when he downed tools and went home because, so he told Mr Smith, he objected to bollard cleaning.  He did not return to work and remained off sick.

	On 25th August 1989 the Appellant wrote to Mr Fletcher offering the permanent appointment as public lighting attendant which he had been told about earlier in the year.  The job involved the same day and night shifts as the job for which Mr Fletcher had applied in January.  Mr Fletcher, who was still at home, simply did not respond to the offer.  He told the Industrial Tribunal "I put it in the back of my mind.  I was very distraught and under pressure.  I wanted a day job, not nights".  He said that the reason he felt under pressure was what Mr Flack had said at the end of his letter of 15th November 1988.  He saw this as a threat that if he did not accept the work offered to him he would be sacked.

	On 21st September 1989 Mr Drain, the Appellant's engineering manager, wrote a letter which is at p.46 of the documents bundle.  He said -
	"I am writing to express my concern that you have not attended two appointments which were arranged for you to see Dr Stanley, the Board's Occupational Health Physician.

	 As the last medical certificate submitted by you indicates that you will be fit to return to work on Monday, 2 October 1989, you should report to Mr J Balcombe, Senior Foreman at Euston Road on that day.  The post you will be occupying is that of Public Lighting Attendant, which was offered to you in my letter of 25 August 1989.

	 The Board has taken considerable trouble to find a job that takes account of your medical problems and I am most concerned that you have not indicated your acceptance of the post offered to you.  On your return to work the position must be clarified, otherwise I will have little alternative than to consider whether you can continue working for the Board." 

	Mr Fletcher replied on 5th October -
	"I wish to state I do not want to do night work having tried this and it is not to my liking as I have already indicated to my supervisors.  I also would like another appointment with the Board's doctor as already requested." 
On 6th October a medical certificate stated that he was suffering from stress and anxiety.

	Also on 6th October, Mr Smith and another official from the Appellant paid a welfare visit to Mr Fletcher.  He told them, after referring to his rejection of the Public Lighting job which he had been offered, which he said was due to a health problem, that he would not be leaving the Appellant and if no job was available that they would have to sack him.  Mr Smith formed the opinion that Mr Fletcher did not wish to come back to work as a lighting attendant and that he wanted to be dismissed.

	On 12th October (p.54) Mr Fletcher wrote to the Appellant -
	"In reply to your letter ... I have sent two letters now stating that night work, and cleaning duties are not suitable to me, which is causing me depression which as you know I am visiting my doctor about".

	On 27th October Dr Stanley reported yet again.  He said -
	"Further to my several reports on the above named employee, his psoriasis has improved and I would not consider that he is a suitable candidate for medical retirement.

	 He is certainly under considerable stress and attributes this to his failure to negotiate a satisfactory job placement with the Board.  He is particularly aggrieved that he has an HGV licence, which he states was obtained at his own expense, and has made a point of saying he would like to be considered for a job as a driver if one should be available.

	 However, at the present time, even this suggestion should be qualified by his stress and anxiety which should be seriously considered as contra indications to driving an HGV." 

	Mr Fletcher was asked to come to a meeting on 16th November to discuss the possibility of terminating his service with the Appellant and the Appellant recommended that a union representative or fellow employee should come with him.  Mr Lowe went through what he called "the whole gamut just talking over what could be done" and was eventually satisfied that all possibilities had been explored.  He formed the view that any work within the Appellant that was suitable to Mr Fletcher, having regard to his health problem, was not work that Mr Fletcher was prepared to accept.

	After this interview, Mr Lowe wrote on the same day to Mr Fletcher telling him that it had been decided to terminate his employment on the grounds of Mr Fletcher's incapability to carry out the duties required of him.  Mr Lowe therefore gave him six weeks' paid notice.  He wrote -
	"In reaching the decision to terminate your employment, I have taken into account that although your psoriasis condition prevents you from continuing as a jointer's mate, the Board's Occupational Health Physician's opinion is that you are capable of carrying out other duties which do not generate excessive heat and perspiration.  The Board has offered you alternative posts which I believe you are capable of performing but which, for your own reasons, you have declined to accept.  I therefore see no alternative to terminating your service."

	At the hearing before the Industrial Tribunal, Mr Fletcher did not dispute Mr Lowe's evidence about the meeting on 16th November; nor did he dispute Mr Lowe's further evidence that over the period from September 1988 to November 16th, 1989, the only job offered formally to Mr Fletcher was public lighting, but that in counselling sessions the following had been suggested: meter reading which Mr Fletcher had refused; depot labouring, which he had refused; sub-station clearance, which he liked, but was temporary only; clerical work, to which he had replied, "It is just not for me"; and storekeeper, but he did not want to work indoors.  Mr Lowe also told the Industrial Tribunal about numerous occasions when consultations and counselling had been carried out by various members of the Appellant's staff with Mr Fletcher.  Mr Fletcher told the Industrial Tribunal that he would have been able to do meter reading, but he did not say why he had not followed up the suggestion that he should do so.  Mr Fletcher told the Tribunal that those taking part in the counselling sessions had appeared to him aggressive; he said he felt threatened and was under stress and was being picked on.  In the unanimous view of the Tribunal there was no evidence whatsoever to support the assertion that the Appellant's management were aggressive or picked on Mr Fletcher; but the Tribunal did accept Mr Fletcher's evidence that nonetheless he felt picked on.

	It is to be observed that at no time after his illness set in in April 1988 did Mr Fletcher, or anybody else on his behalf, suggest that he should resume his work as a jointer in defiance of the medical advice which had been given.  Indeed, in his application to the Tribunal, which is dated 9th March 1990, he said, "I suffer from the condition of psoriasis and agree with my employers that I could not continue to work as a jointer's mate as that involved heavy and dirty work and that I am fit to carry out other duties which do not involve such".

	Despite these matters, at the hearing before the Industrial Tribunal which started on 13th June 1990, it was put forward by Miss Robinson, counsel for Mr Fletcher, that his psoriasis had vanished, never to return; that the medical evidence was equivocal; that the Appellant should not have relied on what was written by Dr Stanley, but should have obtained a full report, perhaps from a consultant; and that the Appellant was unfair not to give Mr Fletcher another trial in his old job, and see whether the psoriasis developed again.  This contention, which had never been made before, was not supported by any medical or other expert evidence, or indeed by any evidence whatever.  When he was cross-examined about what he had said in his Originating Application to the Industrial Tribunal, Mr Fletcher said that he could not remember saying that and that "my solicitor must have mis-wrote that.  I think it has been misconstrued.  I would not have said that".  Before this Tribunal, this was not relied upon, but Miss Robinson said that the application was not a pleading and it had been written before Mr Fletcher and his solicitor had had an opportunity of considering the documents.

	Still in the unanimous part of their Decision, the Industrial Tribunal directed themselves, correctly in our view, about the applicable law.  They said (paragraph 37 of the Decision) that by S.57 of the Employment Protection (Consolidation) Act 1978 the question was whether the [Appellant] in dismissing Mr Fletcher for incapacity on medical grounds acted as a reasonable employer would have done in the circumstances.  The test of reasonableness was not what the Tribunal members themselves would have done in similar circumstances, but whether dismissal was one of the courses that a reasonable employer might have taken in the circumstances.  They went on to say that the Tribunal must decide whether the decision to dismiss was fair and whether the procedure leading to the dismissal was fair.  In paragraph 39, they said that in deciding whether the decision was fair they had regard to -
	1.whether the situation was discussed with Mr Fletcher;
	2.whether the employers could be expected to make allowances for his sickness and absence any longer;
	3.whether the medical reports on which they based their decision were evaluated in the relevant employment context;
	4.whether they took a balanced and informed view of the situation, having regard to the nature of the ill-health, past, present and its likely future nature.

	The Tribunal then said that in deciding whether the procedure was fair they had regard to -
	1.the adequacy of the medical investigation;
	2the adequacy of consultation with Mr Fletcher; and
	3.whether the question of alternative employment was adequately explored having regard to the size and nature of the Appellant's operation.

	The Tribunal then set out the separate conclusion of each member.  Of the majority, Mr Marshall, one of the lay members, took the view that the Appellant acted unreasonably in that when Mr Fletcher went back to work after his illness, they put someone else in his job permanently.  He was never put back in it to see if his illness would recur.  If it had recurred it could have been treated.  It would not have been life threatening.  He should have been given a try.  He was given other jobs which made him sweat, such as sweeping.  The words "may" and "on balance" in the medical reports gave cause for concern.  A proper medical report should have been sought rather than notes by the Company doctor - bearing in mind that he had an obligation to the Company to see the situation from the Company's point of view.  There was no regard to Mr Fletcher's GP's opinion and as there was a conflict of opinions there should have been a specialist report.  He had only had one attack of psoriasis.  There was no cause for great concern.  The employers were messing him about.  He had the right to feel picked on.  Some might see it differently.  There were no real offers of jobs - just dicussions as to what he would consider.  The trial on public lighting never ended.  There was some day work on public lighting.  Why should the [Appellant] have insisted he worked nights?  He never expressed his willingness to do nights.  There were other jobs he could have done.  The Appellants put him on trial on days and then on nights.  There was never any unwillingness on his part to try.  He was sent back and forth.  He had a point in being mistrustful of management if they told him one thing and something else happened.

	Mrs Bourke, the other lay member, also of the majority, took the view that Mr Fletcher should have been given a chance to prove he had got over the psoriasis.  It was not a killer disease, nor infectious.  Instructions were passed down the line and no one spoke to him seriously.  In an organisation the size of the Appellant they could have fitted him in somewhere.  They obviously had no policy for someone in his situation.  He was trying to better himself.  He had done the HGV course.  If the Appellant was a small employer the dismissal would not have been unreasonable.  But because of their size they should have been able to find him something.  They just suddenly put him on nights. That was the worst possible thing for him.  Mr Lowe's letter was about dismissal - it was not offering alternative employment.  The Company doctor said they should be able to find him work in the organisation and his own doctor said he was ready for work.  Incapacity had not been proved.

	On the evidence Mr Marshall and Mrs Bourke found as follows.

	1.That Mr Fletcher's health situation and his prospects of continuing employment were discussed between him and management, but consultation was inadequate in that on each occasion it amounted virtually to a threat to dismiss Mr Fletcher.
	2.That a reasonable employer the size of the Appellant would have made further allowances for his ill-health, in that his condition had cleared up and it could not be categorically stated that it would return without giving him another chance.
	3.That the medical reports on which the decision was based were not evaluated in the relevant employment environment in that the Appellant gave Mr Fletcher heavy work on the sub-station which produced no recurrence of psoriasis and the Appellant's doctor had suggested that he would be fit for work elsewhere within the Appellant's organisation.
	4.That the Appellant did not take a balanced and informed view of the situation, in that it could have given Mr Fletcher a chance to try out his old job.
	5.That the medical investigation was inadequate.
	6.That consultation was inadequate.
	7.That the question of alternative employment was not adequately explored.

	Having regard to those findings, the majority concluded that the procedure leading up to dismissal was unfair, and that the dismissal itself was unfair.

	The Chairman also gave her reasons.  She thought it highly improbable that the Originating Application had been filled out in error or not read over to Mr Fletcher.  On balance of probabilities, at that stage he accepted that he could no longer work as a jointer's mate because of his psoriasis.  Having regard to the doctor's report, that was a sensible and reasonable view for both him and the Appellant.  The severe and incapacitating effect of psoriasis and its tendency to re-appear suddenly were common knowledge and on the evidence were within the Appellant's experience.  In reliance on that knowledge and experience they were entitled to accept the doctor's report without seeking a second opinion.  Not only was their view that it would have been irresponsible to go against the report entirely reasonable, it would have been unreasonable for them to disregard the report.

	The Chairman stated that Mr Fletcher's assertion that he was not told that public lighting involved working at night was not borne out by the evidence which clearly demonstrated that he must have known it involved nights when he applied for a permanent post in January 1989 and throughout the following eight months.  In view of his apparent willingness to work on public lighting it was reasonable for the Appellant to think that it was offering him something he might regard as suitable alternative employment, and it was apparent from the evidence that it was open to alternative suggestions.  Mr Fletcher had not taken the trouble to reply to the offer of a permanent post, and in spite of the opportunities given to him to take up alternative suggestions or to make suggestions of his own during welfare visits and meetings, he did not do so.  Faced with Mr Fletcher's negative response it was difficult to see what more management could have done in the way of exploring the possibilities of alternative employment.  Mr Fletcher might have felt under threat, but that was something he could have clarified by a positive approach to management.  The closing sentence of Mr Flack's letter of November 15th, 1988,  "I will review the whole position at the end of the trial" indicated that management's mind was not closed and the letter could have been read in other ways than as a threat of dismissal.

	Mr Fletcher might have felt under stress, but there was no evidence to suggest that this was a result of anything done on management's part or that it was anything other than a reflection of his own attitude.  Even before the Tribunal Mr Fletcher was unable to point to any available posts which he would have found acceptable within the Appellant's business, and it was difficult to see what more the Appellant could have done in way of consultation.  In holding the permanent post open to Mr Fletcher despite his delayed response they acted generously as well as with restraint and patience and did more than many a reasonable employer might have done.

	The Chairman found the following facts on the evidence.

	1That the reason for dismissal was incapacity due to ill-health.
	2That the ill-health was psoriasis and the possibility of its recurrence.
	3That at the time of dismissal the Appellant genuinely believed that the psoriasis and its possible recurrence incapacitated Mr Fletcher from continuing as a jointer's mate.
	4That the Appellant was supported in its belief by the company doctor's report and by its own experience of psoriasis.
	5That the Appellant acted reasonably in relying on reports of the company doctor, who had knowledge of and experience of the relevant working environment.
	6That medical investigation based on the company doctor's reports and supported by their own experience was sufficient investigation in the circumstances.
	7That consultation with regard to suitable alternative employment, conducted on at least two occasions by welfare visits and at least six occasions on work premises was adequate by the standard of a reasonable employer.
	8That in view of the adequacy of consultation at which work possibilities were suggested and at which Mr Fletcher or his Trade Union representative were given an opportunity to put forward suggestions, the question of alternative employment was adequately explored.
	9That having consulted Mr Fletcher adequately and having had proper regard to medical opinion, as well as to the nature of the illness which could flare up to an incapacitating extent at any time, the Appellant took a balanced and informed view of the situation before deciding to dismiss him.
	10That the decision to dismiss was a course which a reasonable employer might have taken in the circumstances.

	The Chairman therefore concluded that the Appellant acted as a reasonable employer would have done in the circumstances and that the dismissal and procedure leading up to dismissal were fair.

	We read all the documents in the case and the Chairman's very full Note of Evidence.  Insofar as the Chairman refers to the evidence, we are satisfied that she has done so correctly.

	In our judgment, the conclusion of the majority of the Industrial Tribunal was not based on the evidence, was wholly irrational and cannot be supported on any view of the facts.   The Industrial Tribunal was concerned with the consideration of the reason for Mr Fletcher's dismissal and, provided that reason was one falling within S.57(2) of the 1978 Act, whether the Appellant acted reasonably or unreasonably in treating it as a sufficient reason for dismissing Mr Fletcher.  That question could only be determined by considering the matters which were before the Appellant at various stages, as opposed to matters which arose for the first time at the Tribunal hearing.  As we have said, there was until the very day of the hearing no suggestion by Mr Fletcher, or by any person on his behalf, that he should return, whether for a trial period or otherwise, to his old job as cable jointer.  In the application itself, it was stated, with the benefit of legal advice, that Mr Fletcher still suffered from psoriasis and agreed with the Appellant that he could not continue to work as a jointer's mate as that involved heavy and dirty work.  There was no reason whatever why that should have been said if it was not true, and no reason whatever why the solicitor should have invented it if Mr Fletcher had not expressly instructed him about that matter.  We found the attempt to explain this away which was put before us wholly unconvincing.  The Appellant had never heard any suggestion that the medical reports which it received were inadequate or that they should be confirmed by obtaining a further consultant opinion.  Psoriasis is a serious condition and from what we have heard as laymen can be crippling and in extreme cases, life threatening.  The idea that the Appellant should have tried the experiment of returning Mr Fletcher to his work as a jointer to see whether the psoriasis flared up again is in our view so irresponsible that it should have been dismissed out of hand by any reasonable employer to whom it might have been made; and of course no such suggestion was made.  We deprecate the last minute manufacture of a speculative case like this, wholly unsupported by evidence, and sprung on both the Tribunal and the Appellant without, so far as we can see, any notice whatever.  We find it incomprehensible that the majority of the members felt able to entertain it seriously, let alone accept it.

	Considering the conclusions of Mr Marshall (paragraph 42 of the decision) his statement that the Appellant put someone else in Mr Fletcher's job permanently is irrelevant; there were a substantial number of jointers and a job as jointer could have been offered to Mr Fletcher if it had not been for the medical advice.  We greatly regret Mr Marshall's statement, "a proper medical report should have been sought rather than notes by the company doctor - bearing in mind he (the doctor) had an obligation to the company to see the situation from the company's point of view."  There is no justification whatever for this reflection on the doctor's integrity nor was any suggestion of this sort apparently made in the course of the hearing.

	Mr Marshall's conclusion that "[Mr Fletcher] had the right to feel picked on" seems to us to depart completely from the agreed findings to which we have referred. 	Mr Smith, one of the Appellant's witnesses, was recalled to deal with this matter.  Mr Marshall gratuitously accused Mr Smith of lying and made the offensive comment that many people told lies on oath; quite rightly, Mr Marshall's questioning of this witness was stopped by the Chairman.  After subscribing to the unanimous view that there was no evidence that Mr Fletcher had been picked on, Mr Marshall's conclusion that Mr Fletcher "had the right to feel picked on" is inconsistent and irrational.

	With regard to Mrs Bourke's conclusion, we have already said all that we need to about her opinion that Mr Fletcher should have been given a chance to prove that he had got over the psoriasis.  Her conclusion that "incapacity had not been proved" appears to us to ignore all the evidence including that of Mr Fletcher himself.

	In addition to these criticisms, we are all of the opinion that the conclusion that the Appellant acted unreasonably is insupportable.  Mr Fletcher had enjoyed, after the development of his illness, at least eight consultations of various sorts, at which his difficulties and alternative work had been discussed.  He never gave any satisfactory reason for rejecting the suggestion that he might try meter reading, and the suggestion that he should become a public lighting attendant appears to have been entirely acceptable to him.  Mr Marshall's comment that "the trial on public lighting never ended" appears wholly misconceived.  One day in June 1989 Mr Fletcher found that he did not like the cleaning work associated with the job and went home where he remained; when a permanent job in this work was offered to him he simply failed to reply.

	The conclusion of the majority of the Tribunal that Mr Fletcher's medical condition had cleared up is contradicted by the medical evidence itself and by Mr Fletcher in his application to the Tribunal; the suggestion that the medical investigation was inadequate was not made to the Appellant until the day of the hearing and was then wholly unsupported by any evidence; and the conclusions that the consultation with Mr Fletcher was inadequate and that the question of alternative employment was not adequately explored are in our view, and in particular the view of the two industrial members who have great experience in these matters, perverse and contrary to the evidence.

	In our judgment the reasoning of the Chairman is logical and correct and her findings are based upon the evidence.  We regard her conclusion as correct.

	For these reasons, the appeal must be allowed and Mr Fletcher's complaint of unfair dismissal must be dismissed.

© Copyright 1992

EAT/471/90

EAT/471/90

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