United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P DAHLSEN (of Counsel) Free Representation Unit Room 140 49-51 Bedford Row London WC1R 4LR
For the Respondents	MR A ROSS (of Counsel) Borough Solicitor Haringey Council Corporate Services Alexandra House 10 Station Road Wood Green N22 4TR


 


JUDGE D PUGSLEY: The Appellants appeal from the dismissal of their claims for unfair dismissal. In this case the Tribunal Chairman with commendable comprehensiveness and precision set out the main findings of facts in the decision.

The Applicants were Home Carers and in 1993 in view of the implementation of the National Health Services and Community Care Act, the Respondents had to look carefully at their budget for residential care. The Government was encouraging some of the services that had previously been provided by the Council to be sent out to various agencies. The Council could not compete with the outside agencies unless there was a change in working practices.

As a result there was consultation with the Unions about how budgetary changes could be implemented bearing in mind the responsibilities imposed by virtue of the Community Care Act. As a result the Intensive Home Care Teams were abolished and it was agreed there would be a single uniform tier service where all staff would receive training in personal care and all would be expected to undertake all the personal care duties as well as the previous duties. It was clear that these Home Carers all had a duty to their clients and, as their clients' condition deteriorated, the need for additional personal care increased.

In 1995 a new job description was drawn up for the post, agreed with the Unions after consultation and both the Applicants in this case attended consultative meetings. As a result 13 individuals indicated they did not wish to carry out these aspects of personal care. Six accepted the new conditions, one retired, one accepted voluntary redeployment and two were medically retired but these two Applicants refused to sign their job descriptions.

There were various meetings with the Applicants about this and the Tribunal accepted that the Applicants felt they could not carry out personal care duties because they felt sick. After various meetings and in a letter of April 1995 the Applicants were informed that if they did not sign the new job description they would be dismissed from their job. They were given the opportunity of voluntary redeployment.

The Applicants did not accept any of the jobs they were offered and their employment was terminated on 10 September 1995. Prior thereto in May 1995 they had activated a grievance procedure and certain parts of that grievance complaint were upheld. It was agreed and accepted that they had not actually got certain documentation. However, their dismissal stood.

The Tribunal, in a carefully crafted decision, said that in their view the dismissal was due to capability and they cited the well-known dictum of Lord Denning in Abernethy v Mott, Hay & Anderson [1974] (C.A) ICR. The Tribunal then says this:

"In the Employment Rights Act 1996 the definition in Section 98 (2) (a) : 'relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do.' It appears to us that the statement in this judgment covers the position that these Applicants were in when they stated that they could not do the work that was required of them for reasons relating to their mental attitude and physical reaction to the work involved."

Mr Parr, who appeared for the Applicants at that stage, referred the Tribunal to the Disciplinary Code and submitted this was a disciplinary matter. The Tribunal said this:

"In our view this was not a disciplinary matter - this was a question of capability for the job that had to be done and the disciplinary Code of Practice did not apply in these cases."

The Tribunal went on to say:

"The Respondents made every effort to consult with the Applicants over the need to change the emphasis in their work and the Applicants were aware that their work would include personal care for which they had been trained and some of which they had been doing since 1989. The Respondents made every effort to redeploy the Applicants, the Applicants refused to accept any position less than a Grade 5. The Applicants gave various reasons in their evidence for refusing the Grade 5 jobs that they were offered and the Respondents therefore were left with no alternative but to terminate their contracts of employment."

The Tribunal concluded that these were fair dismissals and the case of unfair dismissals were dismissed. The Tribunal continued:

"The Applicants also wished to bring a case for breach of contract and wrongful dismissal but that submission was based on the premise that the Applicants' contracts of employment did not include the need for them to perform personal care duties. As we have stated, we find that the contracts of employment of the Applicants did include the right of the Respondents to ask them to carry out personal care duties and that was accepted by the Unions on their behalf in 1989 for which they were re-graded and received additional payments. Therefore the claims of wrongful dismissal and breach of contract are also dismissed."

The ground of appeal focuses on one matter; that the Tribunal misdirected itself in holding that the Respondents' Disciplinary Code did not apply in which the circumstances of the Appellants' dismissal.

There is no appeal against the finding that there was no breach of contract.

In the grounds of appeal it is contended that:

"9. The disciplinary code expressly deals with capability as well as misconduct. It also sets out circumstances in which termination of employment is not covered by the code. Those circumstances do not include dismissal on the ground of capability.

10. The code provides for an appeal by way of complete re-hearing to a panel of members in cases where the sanction of dismissal is applied. The code expressly provides that members of the appeal panel will not be drawn from the Service Committee which employed the appellant.

11. The Appellants were, however, not offered such an appeal, but were granted an appeal to members of the Service Committee which employed them and which had taken the decision to reorganise the social services department which resulted in the Appellants' dismissal.

12. Thus, by being denied the right of an appeal to independent members the Appellants suffered substantial prejudice in breach of their contractual rights."

Before us Counsel, Mr Ross who appears for the Respondents, has perfectly properly and openly conceded that if we were to find that the dismissal was for a reason that came within the ambit of the disciplinary code, then he would not contend that this appeal could be any other than allowed and there would have to be a remission to the Industrial Tribunal. His case is that it does not apply. He says, and he says with some force, that we should look at the Decision and that says (which we accept) that the Appellants were dismissed on grounds of capability. He contends that the Disciplinary Code does not apply.

The Disciplinary Code of Practice is set out at page 24 of the EAT bundle of documents. The title pages announces that: "It includes the procedure for handling capability/performance at work". At paragraph 1.5 it is stated:-

"1.5 The control of sickness absence is covered by 'The Sickness Absence Monitoring and Control Procedure' and this procedure is specifically for application in cases of sickness absence. It deals with an employees capability to attend work and has sanctions leading ultimately to dismissal. Managers should not mix action on sickness absence with disciplinary action for poor performance or misconduct or for non-compliance with the Sickness Absence procedure."

The Code sets out the range of disciplinary sanctions (Section 3) and identifies the personnel who have the authority to take disciplinary action (Section 4). Section 5 has the title "Dealing with Capability/Performance at Work" and sets out the steps management should take and the various disciplinary sanctions. Section 6 deals with Misconduct and Gross Misconduct. Section 7 sets out the Appeal Procedure and stipulates that there is a right to appeal against the decision to dismiss to a Member panel of the Personnel Sub-Committee.

Appendix 1 deals with the Termination of Employment not covered by the Disciplinary Code of Practice. This stipulates that the Disciplinary Code will not apply when, amongst other reasons, employment is terminated on grounds of ill health (1(d)) or failure to meet qualifications (1(f)).

It is agreed by the Respondents that Appendix 8 - which deals with the procedure and composition - applies to dismissals which take place for capability under Section 5 of the Code.

It is clear that we are in a much more fortunate position than the Industrial Tribunal in that they had a multiplicity of issues which they had to resolve whereas the sole issue for our determination is whether the Disciplinary Code applies in this case. We strongly suspect that we have had much fuller argument on the issue and it may well be that we have been referred to the provisions of the Code in much greater detail.

The Appellants' case is that the Tribunal's own finding was that the reason for dismissal was capability; that paragraph 7.3 gives a right of appeal to the Member panel of the Personnel Sub-Committee and that Appendix 8 (paragraph 2.1) states that "The appeal will be heard by a panel of three Members drawn from a pool of Members as approved by Council. ... Members will not be drawn from the Service Committee for the Directorate that employed the appellant". The Appellants contend that where an agreed Disciplinary Code is not followed then there is a very strong argument that any dismissal will be unfair (East Hertfordshire District Council v K. Boyten[1977] IRLR 347).

The Appellants point out that paragraph 5 expressly refers to dismissals for reasons of capability and that the circumstances to which the Code is not to apply are set out in Appendix 1 of the Code.

The Respondents' argument is that Section 5 is framed in such a way by its heading "Dealing with Capability/Performance at Work" to show that it only applies where capability is an aspect of the standard of performance.

They argue that this is implicit from paragraph 1.1 which points out the Code is designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and job performance and explicit in paragraph 1.5 which makes it clear that sickness absence is covered by a different procedure and that sickness absence should not be the subject of disciplinary procedures.

The Respondents contend that the dismissal is covered by the exceptions set out in Appendix 1: " 'Qualifications' should be interpreted to include aptitude, mental qualities, adaptability or suitability." Dismissal on grounds of ill health (f) it is contended covers a situation in which an employee feels sick at the prospect of attending to the personal care of the elderly. Glitz v Watford Electric Co Ltd [1979] IRLR 89 is cited. In that case a woman was held to have been fairly dismissed due to medical incapability owing to the fact that she genuinely suffered an adverse reaction to a machine, although no fault could be found in the machine.

These are ingenious arguments but in our view unrealistic. We do not consider that of the limitations or exclusions in the Code could be said to apply to the dismissal in this case. To suggest that feeling nauseous at the prospect of dealing with the personal care of others is to be characterised as ill health, or lacking qualifications is in our view, a misuse of language. We do not consider squeamishness is such an abnormal trait as to constitute ill health.

We consider that the proper construction of the Disciplinary Code does include within its ambit cause of lack of capability. The Code itself states that this is the case and to put the strained interpretation suggested by the Respondents is unrealistic when taken in the context of the document as a whole. On the finding it is conceded - and we would in any event have found - that the appeal must be allowed.

In the case of Westminster City Council v Cabaj [1996] IRLR 399, the Court of Appeal held that the failure to adhere to a procedure did not make a dismissal necessarily unfair. It suffices to quote from the headnote:

"The respondent employee was contractually entitled to have his appeal against dismissal determined by an appeals tribunal consisting of three members of the appellant city council and the employers had not performed their contract with the respondent in that respect by providing an appeals panel composed of only two members.

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Accordingly, the EAT was right to allow the employee's appeal on the grounds that the industrial tribunal had erred in regarding the defect in the composition of the appeals tribunal as a procedural error instead of a significant contractual failure.

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The Employment Appeal Tribunal had erred, however, in holding that the employers' failure to observe the contractual appeals procedure meant that the decision to dismiss the employee was necessarily unfair and that, therefore, it was within the EAT's jurisdiction to decide the question rather than remitting it to the industrial tribunal.

Failure by an employer to observe its own contractually enforceable disciplinary procedure does not inevitably require an industrial tribunal to conclude that a dismissal was unfair. The question which the industrial tribunal has to determine under s.57(3) of the Employment Protection (Consolidation) Act is not whether the employer acted reasonably in dismissing the employee, but whether the applicant acted reasonably or unreasonably in treating the reason shown as sufficient reason for dismissal.

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.. In the present case, therefore, on any remission, although the industrial tribunal would be precluded from considering whether it would have made any difference if the appeals tribunal had consisted of three members [drawn from outside the directorate] ... it was bound to consider whether, in providing an appeals tribunal consisting of only two members, the employers had impeded the employee in demonstrating that the real reason for his dismissal was not sufficient and the reasons, if any, why the employers determined to dismiss him without having observed the requirements of their disciplinary code."

These matters have not been considered by the Industrial Tribunal and therefore we consider the matter should be remitted to the Industrial Tribunal. We direct this should go back to the same Tribunal.