United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 591_94_2110

Appeal No. EAT/591/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 October 1994

THE HONOURABLE MR JUSTICE PILL

MRS M L BOYLE

MR J M GALBRAITH CB

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MR A SHEPHERD          APPELLANT

THERMAL PROCESSING GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P CLARK

(Of Counsel)

Heald Wolff

Whelmar House

Southway

Skelmersdale

Lancashire

WN8 6NX


 


MR JUSTICE PILL: This is an Appeal against the decision of the Industrial Tribunal held at Liverpool on the 14th October 1993 and the 2nd December 1993. A request for a review was heard on the 23rd February 1994.

At the first Hearing the Tribunal decided unanimously that the complaint of the Applicant, Mr A Shepherd that he was unfairly dismissed failed. At the second hearing the Tribunal decided that the application should be refused on the ground that it had no reasonable prospect of success. Certain factual errors in the Tribunal's earlier decision were corrected.

The Respondent's employers, Thermal Processing Group Ltd manufacture components for the Aerospace and Automotive industry. Its business is highly specialised and skilled and at the material time there were about forty five employees. Mr Shepherd was employed as a Quality Control Inspector and he commenced his employment on the 19th March 1990. His job was, not only very important, but was skilled and specialist. He was an extremely good inspector. His employment was terminated on the 19th March 1993.

Mr. Shepherd unfortunately had been injured at work on the 30th March 1992, and sustained a prolapsed disc. His contractual sick pay was extended to six weeks. At a meeting on the 16th June 1992, there was discussion as to when Mr Shepherd might be able to return to work, if at all. There was also a discussion as to whether he would be able and willing to do a different type of job with the employers. Mr Shepherd expressed his willingness to be examined by the Company's Doctor.

There were further meetings on the 10th July 1992 and the 13th August 1992. At the second of those meetings, the employers offered Mr Shepherd alternative work on a trial basis for eight to ten weeks. It still involved Quality inspection but the job was designed to minimise the need for the Applicant to lift items weighing more than ten kilograms. Further oral discussion followed. On the 6th November, Mr Shepherd declined the offer because he believed that he would be subject to the risk of further injury. In addition, he was concerned that if the trial period were to fail, he would stand to lose the state financial benefits that he had painstakingly acquired.

Eleven days later on the 17th November, the employers wrote to Mr Shepherd suggesting a meeting and requested his consent for examination by a doctor instructed by the Company. There was a further meeting on the 26th November, to discuss Mr Shepherd's future. Mr Shepherd agreed that he could never do his pre-accident job and he appreciated that the Respondent might well terminate his employment as a result. The 22nd December, Mr Shepherd saw his own doctor, Dr Mennin, in relation to a permanent health insurance claim. The report was disclosed to the permanent health insurers with whom the employers had an arrangement; it was not disclosed to the employers. The insurers paid Mr Shepherd permanent health insurance benefits which were back-dated to September.

By Christmas of 1992, the employers were becoming very concerned that the workload was falling on the other three inspectors and in February 1993, the line manager informed the management that he could no longer manage with just three inspectors. On the 5th March 1993, Mr Shepherd submitted a doctor's note which indicated that he would be unfit to do his pre-accident work for another three months. It was in those circumstances that the employers wrote to Mr Shepherd, a letter dated 12th March which is set out in the Tribunal's decision. For completeness we set it out again:

Once again we formerly offer you the opportunity of continuing your employment with us on the basis of our letter of 13th August 1992. If you choose not to accept this offer, then it is our intention to terminate your employment with the Company by virtue of your incapacity to discharge your contractual duties. The termination will become effective on Friday, 19th March 1993 unless mutually acceptable alternatives can be agreed upon".

The letter concluded:

"In the event that no suitable alternative employment can be found, your employment will terminated from effect 19th March 1993. You would under those circumstances be entitled to the three weeks pay in lieu of notice which free of tax at source."

There was a further meeting on the 19th March, when Mr Shepherd stated that he felt unable to accept the job offer made in August, due to his physical condition and under those circumstances he was dismissed. A letter was sent to him on the 23rd March 1993.

Upon those facts the Tribunal found that the reason for the Applicant's dismissal was his inability to perform his contractual duties due to sickness which amounted to incapacity. The Tribunal set out Sections 57(3) of the Employment Protection Consolidation Act 1978, and then set out its' findings. In paragraph 8a it is stated:

The respondent carried out sufficient investigation into the applicant's medical position as a result of which, together with the views expressed by the applicant, it was entitled to conclude that the applicant was incapable of carrying out his contractual duties by reason of his medical condition, either on 19th March 1993 or for the foreseeable future. It was argued by the applicant that the respondents should have obtained a fresh medical report from Dr. Mennin, or one of its own, before coming to the conclusion that he had to be dismissed. We are however satisfied that there was no need for the respondents to carry out any further medical investigation since Mr. John (the respondent's dismissing officer) had the sick note from the applicant's own doctor and he knew that the respondents' insurers were paying the applicant permanent health insurance benefits on the strength of the report prepared by the applicant's doctor, Dr. Mennin."

The Tribunal went on to find that the employers had fully consulted Mr Shepherd at every stage and had offered alternative employment which they had endeavoured to tailor to his needs. They found that by March 1993 the employers could no longer be expected to manage with only three inspectors, and that there was some discontent by that time amongst the other three inspectors.

The Tribunal further found that the meeting held on the 19th March 1993 was not a sham, and that they were satisfied that it was a final attempt by the employers to try and find a solution to avoid dismissing Mr Shepherd. They concluded that the employers did everything in their power to try and find a satisfactory solution to the Applicant's difficulties.

By an amended Notice of Appeal it is submitted that the Tribunal failed properly to consider whether the Applicants carried out sufficient investigation into Mr Shepherd's medical condition in that a) at no time, did they consider a medical report from a specialist or general practitioner b) that on the 19th March 1993, Mr Shepherd informed Mr John, the Divisional Manager, that he would have expected the Company to go through a procedure of medical records and examinations and the request was ignored c) that the employer should not have relied upon the fact that receiving health insurance monies from an insurance company to cover Mr Shepherd's sick pay was sufficient evidence or investigation for the future prognosis of Mr Shepherd's condition.

A further and a separate point is made which we will consider later. In his clear and helpful submissions on behalf of the Applicant, Mr Clark submits that the Tribunal have erred in law in failing to require further medical enquiries by the employer. He accepts that this is the case where there has been a great deal of discussion between the employers and Mr Shepherd as to Mr Shepherd's future and he accepts, as he has to, that the period during which Mr Shepherd had not been working had extended to almost one year, and in a situation in which he was one of only four people doing the relevant specialist work.

Mr Clark submits that it was not reasonable for the employers to rely upon the general practitioner's note and further that having indicated their wish in 1992 to conduct further medical enquiries, it was unreasonable of them not to make those enquiries when it came to March of 1993. As to Mr Shepherd's own statement that he would never be fit for his pre-accident work, Mr Clark submits that, in the circumstances, further medical evidence should have been sought as a part of the duty of consultation which the case of Polkey requires in order to see whether other alternative employment might be available for Mr Shepherd with the employers.

Mr Clark does not put it as a proposition of law that the employers must always obtain the opinion of a Consultant, but he submits that further medical enquiries ought to have been made in this case and that the Tribunal erred in law in holding that the employers had acted reasonably in dismissing when they did and upon the information which they had.

Mr Clark has referred to the case of East Lindsey District Council v Daubney [1977] IRLR 181 and the statement of the Employment Tribunal in that case (Philips J presiding) that:

"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 have considered Daubney, and in our view the overall effect of the decision is not unfavourable to upholding the decision of the Tribunal in the present case. The head note includes the statement that:

"Though the steps that employers should take vary, if in every case employers take such steps that 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 condition, it will be found in practice that all that is necessary has been done"

We have also been referred to the decisions of Patterson v Messrs. Bracketts [1977] IRLR 137, where the Tribunal indicated that an employer should take a balanced view upon medical evidence, and the case of Crampton v Dacorum Motors Limited [1975] IRLR 168 where an Industrial Tribunal found that an employer had acted hastily by relying on the tentative diagnosis of a General Practitioner. It is trite law that within the general duties imposed upon employers, each case must be decided upon its own facts. There is every indication that this Industrial Tribunal has fully explored the evidence, carefully made findings of facts and they carefully considered the effect of those findings. They were entitled to bear in mind that another alternative employment had in August of 1992, been offered to Mr Shepherd, that Mr Shepherd himself had agreed that he could never do his pre-accident job, that almost a year had elapsed from the date of the unfortunate accident at work to the date when the dismissal occurred. They were entitled to have regard to the nature of the Appellant's work and the effect which his absence was having, to the many meetings which were held by way of consultation and to the fact that a sickness note for a further three months had been delivered to them. In those circumstances, the Industrial Tribunal were, in our judgment entitled to reach the conclusions which they did.

We do not consider that the indications the employers gave, in the situation then existing, about further enquiries in 1992 made it obligatory for them to make those very enquiries in the situation as it appeared in 1993 or that the Tribunal erred in law in not regarding that consideration as decisive.

Mr. Clark's other point is that the Tribunal did not bring to Mr Shepherd's attention the fact that he had, by his conditions of employment, a right of Appeal against the decision to dismiss. Mr Shepherd appeared in person before the Tribunal. It is not disputed that he had a copy of his relevant conditions and that he did not exercise his right of Appeal. Mr Clark realistically puts this submission as a subsidiary submission and accepts that Mr Shepherd did not bring up the question either with his employers when they sought to dismiss him or with the Tribunal at the Hearing or when a request when a review was requested. We have come to the conclusion that Mr Shepherd cannot, at this stage expect to bring up a point such as this, and further there is no plain evidence before us as to the state of his knowledge or his state of mind or any reason he may have had for failing to consult the wording of his contract or to bring the matter up. In saying that, we are not doubting the good faith of Counsel who has told us what instructions he has.

This is a Preliminary Hearing and we would allow the matter to go forward to a full Hearing if we considered that there was an arguable point of law. We have had the advantage of full submissions from Mr Clark and we have considered the decision of the Tribunal and the documents before us. We have unanimously come to the conclusion that the matter should not go to a full hearing and that the Appeal should be dismissed at this stage.