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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ibekwe v London Regional Transport [1996] UKEAT 1247_95_2404 (24 April 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/1247_95_2404.html
Cite as: [1996] UKEAT 1247_95_2404
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At the Tribunal
HIS HONOUR JUDGE P CLARK
MR A E R MANNERS
MRS P TURNER
JUDGMENT
PRELIMINARY HEARING - EX PARTE
Revised
APPEARANCES
For the Appellant THE APPELLANT IN
PERSON
JUDGE CLARK: Mr Ibekwe was employed by the respondent as a bus driver from December 1988 until his dismissal with effect from 25th January 1995.
His attendance record in the latter years of his employment showed that in 1993 he had 66 days off work and in 1994, 144 days. He did not attend for work in January 1995 prior to his dismissal.
On 15th October 1994 he suffered a recurrence, according to the medical evidence, of a back problem which caused him to go off work and remain off until his dismissal. The circumstances were that he was operating his bus and during the course of his shift he had to make sure that the rear door was clear at each stop. That involved him leaning over the wheel and looking round and it was this which caused his back problem on that occasion.
The respondent's Garage Manager, Mr Roberts, held a meeting with the appellant on 25th January 1995. At that time he was still expecting a further medical report. Without waiting for that report he dismissed the appellant on the grounds of incapability through ill-health.
That dismissal was followed by an internal appeal taken by Mr Elms, the Commercial Director. By then a further medical report dated 1st February 1995 had been received. The doctors prognosis was that the appellant was not then fit for work, that a return to work was not imminent, and the nature of his back problem was such that it could recur from time to time so that after any return to work he could well be off sick again. On 29th March when the appeal was heard the appellant was still receiving sick certificates from his general practitioner for the purpose of claiming state benefit.
Taking together that prognosis and the appellant's history of absences, coupled with the company's target of 90% attendance in order to run a bus service, Mr Elms dismissed the appeal.
Before the Industrial Tribunal sitting at London (South) on 29th September 1995 it was argued on the appellant's behalf by his solicitor that the decision taken by Mr Roberts to dismiss the appellant before receiving the promised further medical report was unfair. The respondent accepted the force of that point, but contended that any defect at the dismissal stage was cured by the subsequent appeal, when the expected report was available to and considered by Mr Elms. The tribunal relied on the guidance contained in this appeal tribunal's decision in Whitbread v Mills [1988] IRLR 501. The tribunal having found that the reason for dismissal related to the appellant's long-term sickness, accepted the respondent's contention and dismissed the complaint. Against that decision the appellant now appeals.
This is a preliminary hearing held to determine whether or not there is an arguable point of law or points of law to go to a full hearing before this tribunal.
The grounds advanced in support of the appeal are as follows. First, that the tribunal erred in finding that the reason for dismissal related to capability rather than conduct. In our view, even if the tribunal attached the wrong label to the set of facts which made up the respondent's reason for dismissal, that would not assist him. In reality, we are quite satisfied that the reason was correctly categorised as capability, bearing in mind the definition of capability contained in Section 57(4)(a) of the Employment Protection (Consolidation) Act 1978 which includes capability assessed by reference to the employee's health.
Secondly, he contends that the tribunal was wrong to direct itself in accordance with the test contained in the Court of Appeal decision in Alidair v Taylor [1978] ICR 445, the case of the negligent pilot. He seeks to distinguish that case on its facts, and we accept that distinction. However the statement of principle relied on by the tribunal in asking itself the question "Does the employer honestly believe on reasonable grounds that the employee is incapable of doing his job" seems to us entirely apposite to the facts of this case.
Thirdly, he submits that the Industrial Tribunal failed correctly to apply the principle in Whitbread v Mills [1988] ICR 776. The principle there enunciated by Wood J, giving the judgment of this tribunal, is that a breach of fairness at the dismissal stage may be cured by a properly constituted appeal hearing. In this case Mr Elms did more than simply carry out a review of Mr Roberts decision to dismiss. In particular, he took into account the further medical report which had not been available to Mr Roberts. In our view the Industrial Tribunal, mindful of the guidance in Whitbread v Mills, was entitled to conclude that the earlier defect had been cured on appeal.
His next point is that since his most recent sickness absence resulted from an accident at work, he could rely upon the automatic unfair dismissal provisions of Section 57A of the Act, or alternatively, the provisions of Section 22A, that is a detriment short of dismissal. We see two difficulties here. The first is that the point was not taken below, and cannot now be taken. See Kumchyk v York City Council [1978] ICR 1116. The second, more substantial difficulty, is that Section 57A is concerned with the dismissal of health and safety representatives or in their absence employees who complain about health and safety matters and applies only where that is the reason for dismissal. It has nothing to do with pure dismissals on medical grounds, which, in our view, is what this case was about.
Next, he complains that the tribunal has wrongly substituted its own view for that of the employer. That complaint is wholly misconceived. What the Industrial Tribunal found was that the employer acted reasonably in dismissing for the reason which it advanced. This argument is regularly deployed on behalf of employers, never in our experience has it been applied to appeals by employees.
Finally, he says that the internal appeal was procedurally defective. He was given only two working days notice of the hearing held on 29th March. He was not given an opportunity to challenge the company medical officers report, and in breach of his contract of employment he was not medically retired under the contractual procedure.
Before the Industrial Tribunal Mr Ibekwe was represented by a solicitor. Either these points were taken and considered by the tribunal, or they were not taken, in which case we cannot consider them now. In particular, it seems that the contractual issue which he seeks to raise today, was never raised before the Industrial Tribunal.
Our function is to interfere only where a point of law arises. it is not to give parties an opportunity to relitigate the factual issues which are left by Parliament to Industrial Tribunals.
Having considered all the points raised by Mr Ibekwe we are driven to conclude that this appeal discloses no arguable point of law and it must be dismissed.