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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> G N Netcom Ltd v Whitwell [1994] UKEAT 517_92_3008 (30 August 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/517_92_3008.html
Cite as: [1994] UKEAT 517_92_3008
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At the Tribunal
Judgment delivered 5 September 1994
Before
THE HONOURABLE MR JUSTICE TUCKER
MR P DAWSON OBE
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR P CAPE
(Of Counsel)
Messrs Short Richardson
& Forth
4 Mosley Street
Newcastle Upon Tyne
NE1 1SR
For the Respondents MR B CARR
(Of Counsel)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
London
SW19 1SE
MR JUSTICE TUCKER: This is an employers appeal from the decision of an Industrial Tribunal held at Newcastle upon Tyne on 14 May 1992, and sent to the parties on 29 June whereby it was held that the Applicant employee had been unfairly dismissed. It was not a unanimous decision. The Chairman dissented from it.
The Tribunal unanimously decided that the reason for dismissal was that the Applicant had been absent from work for a protracted period. Therefore, the reason was one of capability and fell within Section 57(2)(a) of the Employment Protection (Consolidation) Act 1978. The majority of the Tribunal was of the view that the dismissal of the Applicant was unfair within the terms of Section 57(3) of the Act, but the Chairman disagreed.
The question that divided the Tribunal was therefore that of fairness. The conclusion of the majority of the Tribunal was that the procedure adopted by the employers was unfair and that it was unfair not to give the Applicant the chance of proving that she could work, and that overall, the decision was unfair. (See the final paragraph of paragraph 21 of the Majority Reasons).
The Respondent is a married lady aged 35 at the date of her dismissal. She had been employed by the Appellants for over seven years as a production Operator in the manufacture of head sets for telephones. She was a member of the Amalgamated Engineering Union. That Union had reached an agreement with the Applicants which contained the following term:
"When after 16 weeks of absence, there is no immediate prospect of a return to work, the Company will automatically terminate employment with due notice, under the Contract of Employment provisions".
In May 1991 the Respondent unfortunately became ill. She was, as the Tribunal found, absent from work from 21 May 1991 and was continually absent from then to the termination of her employment, except for a period of about four hours on the morning of 24 June when her husband had to be called to take her home as she felt unwell. She provided evidence of sickness in the form of a number of doctor's certificates. The first of these was dated 3 June for two weeks, the diagnosis being tinnitus. The last certificate was dated 13 September 1991 for four weeks and the diagnosis was "Ménièr's disease".
The Appellants were clearly concerned about this. On 16 September their Company Secretary, Mr Quigly spoke to Dr Patterson of the Employment Medical Advisory Service seeking his advice about symptoms of the disease and the effectiveness of ear protection to allow a person to return to work. It appears from a letter which the doctor subsequently wrote that in his opinion there is no known connection with noise, that there was no need for anyone in the Appellants' workplace to wear ear protection, and that the sufferers of Ménièr's disease are not more sensitive to noise than non-sufferers.
On 19 September an important meeting took place, attended by the Respondent and two of the employer's officers. The Respondent is a resourceful lady. She had secreted about her a tape recorder which recorded most of what took place. No point was taken about this, and the Tribunal did not consider that the Respondent should be criticised for it. They found that the meeting was held in an atmosphere of friendliness and concern.
The Respondent's Union Representative was not present during the first part of the meeting. At a later stage the employers pointed this out to the Respondent, and the meeting was adjourned so the Representative, Anne Graham, could attend. This is what gives rise to the complaint of procedural unfairness.
It has to be appreciated that at the time of the meeting the Respondent was still absent from work; that she had produced a sick note only six days before, stating that she should refrain from work for four weeks; and that the diagnosis of the disorder causing her absence from work was Ménièr's disease. However, at the meeting the Respondent asked to be taken back forthwith, notwithstanding that she said she would probably have to wait four weeks for tests to be carried out and then probably another four weeks for the results. The Respondent said that a doctor at the Hospital had said "Give it a go", but that she must have ear protection. The expression "Give it a go" is one which the Respondent used on several occasions during the interview. When she was asked whether her own doctor was prepared to certify her fit for work the Respondent said she had explained to him what she had been told at the hospital and that her GP said "Ask for ear protection. If they give you it, come back and I will sign you off. If they don't give you it, stay on the sick". The Respondent made no secret of the fact that the reason she wanted to resume work was that she needed the money. Although the Tribunal made no finding about this, it is obvious that the Respondent was aware that the 16 week period was nearly up, if it had not already expired, and that she was anxious not to have her employment terminated.
The Respondent's assertion that she had been told to "Give it a go" was unsupported by any documentation, and there was no mention of it or of the wearing of ear muffs in a subsequent letter from her GP dated 4 October 1991.
As the Tribunal found, no final conclusion was reached at this meeting. The Appellants wanted to make further enquiries and to think about it. They pointed out that the Respondent was still covered by a sick note until 13 October. After the meeting they sought a written opinion from Dr Patterson, which he gave in a letter dated 26 September. The following day, 27 September, a letter was sent to the Respondent terminating her employment from 4 October 1991. It stated that the explanation for this action was that "Ménièr's disease has various symptoms which we feel would be of a hazard to yourself in the work place".
This is the factual background against which the majority of the Tribunal made its finding of unfairness.
1 Procedural Unfairness
There is no doubt that the Respondent was entitled to have a representative with her. There was a breach of the procedural rules. The majority felt that the Respondent had been at a disadvantage in representing herself at the meeting because of Mrs Graham's absence during part of it. They felt that the dismissal was procedurally unfair, although they do not specify why this was so. It has been submitted to us by Mr Carr on behalf of the Respondent that Mrs Graham was unaware of the nature of the discussions and had had no time to prepare for the meeting in consultation with the Respondent.
In our view there was an element of unfairness in the arrangements for the meeting. The union representative ought to have been given notice of it so as to enable her to prepare for it with the Respondent. However, this procedural error was not in our opinion sufficient to render the dismissal unfair. The Respondent clearly understood the seriousness of the proceedings, having taken steps to record them, yet she did not herself take the simple step of informing her Union Representative. As it was, it was left to the Appellants to draw the Respondent's attention to her right to have her Representative present. We cannot see how she was disadvantaged by what took place. The Industrial Tribunal did not deal with the question whether the impropriety which they found to have occurred was sufficient to render the dismissal unfair.
We remind ourselves of what Knox J said in Fuller v Lloyds Bank Plc [1991] 1 RLR 336 at page 339 paragraph 42 where he referred to the defect being not such as to render the procedure intrinsically unfair so as to require the dismissal not to stand as fair. We think that that is the position here.
2 The Unfairness of the dismissal
The majority criticised the Appellants for not obtaining an independent medical opinion on the Respondent, and for relying upon the advice given by Dr Patterson, who had never seen her. They also stated that the Appellants declined to accept the Respondent's return to work on any basis, and that it was unfair not to give her the opportunity of attempting to prove that she could return to work. They state that an independent examination of the Respondent before her dismissal might have persuaded the Appellants that she was not suffering from Ménièr's disease.
In our view the majority of the Tribunal were wrong to focus their attention on the medical question and the state of the Respondent's health. They should have addressed the question of whether the Appellants might reasonably have been expected to wait any longer for the Respondent to return to work. Had they concentrated on that question, they would have taken proper account of the Appellants' policy of absenteeism, and the fact that the Respondent's dismissal was entirely consistent with that policy.
As it was, the majority gave undue emphasis, in our view, to the Respondent's claim that she should be allowed to "Give it a go". In the light of the current medical certificate declaring herself unfair for work, of the Respondent's own account of the occasionally disabling nature of her illness, and of the medical opinion which they had obtained, the Appellants were in our opinion fully justified in deciding not to take the risk of allowing her to return to work to see how she got on. No reasonable employer would take such a risk with the possibility that he might expose the employee to further harm, or himself to the risk of litigation.
It is clear from the decision in EAT in East Lindsey Council v Daubney [1977] ICR 566 that it is not the function of employers to turn themselves into some sort of medical appeal tribunal to review the opinions and advice received from their medical advisers. Moreover, 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.
In our opinion it is not incumbent upon employers, when deciding whether or not to dismiss an employee, to discover the true diagnosis of the employee's illness, but simply to establish what the medical position is so far as it is relevant to the question of employment. Is the employee fit to return to work?
The basis 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? (See Phillips J in Spencer v Paragon Wallpaper Ltd [1977] ICR 301 at page 307.
The law on this topic was summarised by Browne-Wilkinson J (as he then was) in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 at page 442 paragraph 24, in these words:
"We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by Section 57(3) of the 1978 Act is as follows:
(1) the starting point should always be the words of Section 57(3) themselves;
(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct not simply whether they (the members of the Industrial Tribunal consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair".
On the Respondent's behalf it is submitted that the Industrial Tribunal was the industrial jury, that the question of unfairness was one for them to decide, and that unless there is disclosed some error of principle or perversity, it is not for EAT to interfere with their findings. That begs the question whether the industrial jury were asking themselves the right question, which in our opinion for the reasons set out they were not.
It is further submitted that before employers can decide whether or not an employee is fit to return to work, and before it can be ascertained whether an employer's action falls within a reasonable band of responses, proper and sufficient enquiries and investigations have to be made about the employer's capability for work, and that the majority of the Industrial Tribunal were correct to conclude that this was not done in the instant case. Here, it is submitted, was an employee wanting to return to work, and being prevented from doing so on the basis of a general unspecified medical opinion. It is submitted that the Appellants should have determined properly what the true medical position was, that they did not do so, and that they thereby deprived themselves of the opportunity of reaching a properly informed decision.
For the reasons which have been sent out, we are unable to agree with these submissions. Had the majority of the Industrial Tribunal asked themselves the proper questions they would not and could not have arrived at the decision which they did. In our opinion the only conclusion would have been that the decision of the Appellants to dismiss the Respondent was, in the circumstances, one which fell within the band of reasonable responses, and that the dismissal was not unfair.
For these reasons we allow this appeal. The decision of the majority of the Industrial Tribunal will be reversed, and the application will be dismissed.