United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J M HEAL (of Counsel) Messrs Bridge McFarland Solicitors Colbeck Chambers 340-341 High Street Lincoln LN5 7DQ


 


JUDGE COLIN SMITH QC: This is an application by the appellant, Miss Diana Mason, who was the applicant before the Industrial Tribunal, for leave to proceed to a full hearing of an appeal against the decision of an Industrial Tribunal held at Hull in July and September 1996, when the Industrial Tribunal held that the appellant had not been unfairly dismissed from her employment with Home Shopping Network (UK) Ltd, the respondents. We have reminded ourselves that the appellant need only show an arguable point of law to be allowed to proceed to a full hearing of the appeal.

We have had a most helpful submission by Counsel on behalf of the appellant today from which it is clear that there are two ways in which the Industrial Tribunal's approach is criticised. Namely:

(1) That on the medical issue they should have found that the employers failed to find out the true medical position, and accordingly their findings were incorrect in law in that regard.

(2) That on the proper and fair construction of their reasoning in paragraph 14 it is submitted that they fell into the trap of looking at the situation that had arisen with hindsight and had in effect concluded that the procedural deficiencies which they identified would not have made any difference. Whereas, so it is submitted, they should have looked at all the circumstances about which the respondents knew at the time of the dismissal and asked themselves whether a reasonable employer would have done what the employer actually did.

So those are the two basic points that are taken which we will have to consider.

Before considering these submissions, it is necessary to set out the findings of fact and conclusions of the Industrial Tribunal sufficiently for the points taken to be understood and considered.

As appears from the findings of the Industrial Tribunal, the appellant had been employed by the respondents and their predecessors as a driver from March 1980 until her employment was terminated on 12th January 1996. The type of business carried on by the respondents and the type of work consequently required of the appellant as a driver, is set out in paragraph 3 of the decision. Putting it shortly, the appellant was required to make deliveries of parcels from the Scunthorpe Depot to various addresses along standard routes. With effect from September 1995 the respondents guaranteed delivery to customers within 48 hours with a result that each day's deliveries had to be finished on that particular day. Some routes were harder to work than others because they had a greater concentration of addresses to which delivery had to be made.

Most unfortunately from about 1990, the appellant suffered deterioration in her health due to the results of dental treatment which had gone wrong. By 1995 the appellant was obliged to be absent from 5th April to 12th May 1995 and then was continuously absent from 4th September 1995, initially due to influenza, post viral illness and hypertension, and later due to stress related illness and viral infection. By 25th September 1995 she had been off for some 12 weeks and the respondent had to attend to the problem. During the month of September 1995 a decision was taken to move the appellant to an easier route. This upset the appellant who had intended to return to work on 22nd September 1995 but never in fact returned thereafter.

By their decision the Industrial Tribunal then went on to make detailed, and in our judgment, careful findings as to the course events took in paragraph 6 to 13 of the decision. For the full details of those findings reference is made to the Industrial Tribunal's decision. It was apparent from what the appellant told the respondents' staff dealing with the matter, that she was finding it difficult to drive due to her illness. The respondents obtained a report from the appellant's general practitioner, dated 29th September 1995 in which she referred to her continued illness and stated that her dental problems had been present for at least four years and were likely to continue to cause her problems. The full report is set out in extenso in the Industrial Tribunal's decision at paragraph 7. There followed a self-explanatory letter from the Depot Manager, and another meeting with Ms Yates at the end of October, followed by another letter from the Depot Manager rehearsing the number of days lost, and suggesting the appellant should be available for work on 20th November 1995. The matter was then taken up by the General Manager of the respondents, and after correspondence a meeting was arranged for 4th January 1996 with the appellant, at which the respondents arranged for a shop steward to be present on her behalf. During the meeting it appears, according to the findings of the Industrial Tribunal, that the appellant became upset so that the meeting had to be adjourned until 12th January 1996. The Industrial Tribunal found that what took place at that later meeting on 12th January 1996, on both sides, was fairly and accurately recorded in Mr Linford's letter of dismissal to the appellant dated 12th January 1996 which is set out in full in paragraph 11 of the decision. It is clear from that letter that at the meeting the appellant had indicated that she was unable to return to work as a driver and that she did not feel able indeed to carry out any alternative work in the respondents' depot. It was in those circumstances that the appellant was dismissed due to her medical condition, and consequent incapability of carrying out her contract of employment as a driver. There followed two internal appeals, at both of which it was admitted by the appellant that she could not return to work due to her stress condition. Indeed, at one of the appeals a proposal was put forward on her behalf by the union representative who was assisting her that she should be granted a 12-month sabbatical with effect from April 1996, but this was rejected and the decision to dismiss was upheld.

The Industrial Tribunal then proceeded to make its crucial findings in paragraph 14 of its decision having identified the reason for dismissal correctly as being absence of the appellant through sickness, which for the purposes of the Employment Rights Act 1996 fell within the category of capability. The Industrial Tribunal then in our judgment set out the correct legal principles and referred correctly to the procedure to be followed in cases of protracted sickness. Thus they stated as follows:

"14. ... It is well established by copious authority over the years that the correct procedure to be followed in cases of protracted sickness is that there should be a process of discussion with the employee from time to time during the period of illness and that personal contract should be maintained. If the time should come when the question of continued employment falls for consideration, then the employer should obtain a medical report generally in the first instance from the medical attendant of the employee setting out the nature and severity of the illness and its anticipated duration. The employer should have a meeting with the employee when the employee is informed of the contents of the report and asked for his or her own views in the matter and especially given an opportunity to disagree with the doctor's estimate of the severity and likely duration of the condition. Furthermore consideration should be given to the possibility of providing alternative employment. If when all that is done it emerges that dismissal would be within the range of response of a reasonable employer then employee may be dismissed. ..."

In our judgment it is clear there that the Industrial Tribunal are setting out the correct principles and have identified the correct principles of law which apply to this most difficult area of potential dismissal and actual dismissal due to long term sickness and thus incapability. In our judgment they have correctly set out the principles. The Industrial Tribunal then proceed in paragraph 14 to seek to apply those principles to the facts of the particular case. They found, first of all, that the respondents did not act with any culpable lack of consideration towards the appellant. They found in particular that it seemed to be well within the rights of the respondents acting as a reasonable employer to transfer the appellant to another route in the month of September 1995. They then continued in this way:

"Procedurally we are of the view that the actions of the first respondent left something to be desired. The medical report obtained by it was stale when the time to consider dismissal arrived and we are not satisfied that the applicant was shown the report and allowed to comment on it, and in any event it did not deal adequately with the matter of the expected duration of the applicant's illness."

It is apparent there to us that the Industrial Tribunal specifically took into account the failure of the respondents to obtain a completely up-to-date general practitioner's report, and they took into account the fact that the appellant was not shown the report or allowed to comment on it, and that it did not deal adequately with the expected duration of the appellant's stress-related illness. In our judgment there is no doubt that the Industrial Tribunal weighed these matters up carefully in the scales in arriving at their decision. They put the matter in this way:

"On the other hand, it must be said that the applicant herself made it abundantly clear that she was unfit for duty and would not be able to return for a period of many months. That being established, we are satisfied that no unfairness in fact arose by reason of the procedural deficiencies to which we have referred."

Pausing there, in our judgment, it is apparent that certainly on this reasoning the Industrial Tribunal are applying the correct test dealing with the Polkey issue which is the second issue sought to be raised by the appellant. In our judgment that reasoning is entirely consistent with the Industrial Tribunal looking at the position from the standpoint of the reasonableness of the employers' actions at the time. However, it is the next sentence which is criticised where the Industrial Tribunal went on as follows:

"It must be observed here that the applicant even at the date of hearing was unfit for work and in receipt of state benefits by reason of her illness."

If one were to take that one sentence in isolation from the remainder of the reasoning of the Industrial Tribunal, we can see that it is open to the construction that they were there looking at the matter from the point of view of what they had seen themselves and were dealing with the matter, arguably perhaps, on the basis that the procedural deficiencies would not have made any difference. However, in our judgment, that is not a fair and proper characterisation of this one sentence in the Industrial Tribunal's reasoning in paragraph 14. It must be read in context. In that regard, we pay particular regard to the obiter dicta of Balcombe LJ in the fairly recent case of Duffy v Yeomans & Partners [1994] IRLR 643 as cited in the headnote:

"There is grave danger that this area of the law is becoming over-sophisticated, and that there is an attempt to lay down as rules of law matters which are not more than factors which an Industrial Tribunal should take into account in reaching its decision whether the employers acted reasonably in the circumstances of the particular case."

That is one observation that we have in mind. We also have the well-known observations in mind that the decisions of Industrial Tribunals, acting as they are as industrial juries, should not be subjected to over analytical and over technical or formalistic scrutiny. In our judgment, taking the reasoning of the Industrial Tribunal as a whole in paragraph 14, it is abundantly apparent that they were looking at the matter with regard to the way the reasonable employer should have looked at the matter at the time of the dismissal, and judging whether this employer acted reasonably by reference to the circumstances which the respondents knew at the time of the dismissal. Accordingly we take the view that there is no arguable point with regard to that aspect of the matter.

We turn to consider the other matter. We accept of course, and have been very helpfully reminded of the importance of the principles laid down by the President as he then was in East Lindsey District Council v Daubney [1977] ICR 566, particularly at page 571H, being followed by employers in circumstances where they have to consider whether an employee should be dismissed on the grounds of ill-health. But in our judgment, at the end of the day, each case depends very much on its own facts. There is no hard and fast rule, in our judgment, that because there is not an absolutely up-to-date medical report in any given case, the Industrial Tribunal is therefore obliged to find that the employer has acted outside the range of reasonableness. Each case must turn on its own facts. In this particular case, in our judgment, the Industrial Tribunal was fully entitled to conclude, having weighed the matter up and having specifically taken into account the defects in the procedure which they did identify, that no unfairness had in fact arisen, and that the employers had acted fairly and reasonably in all the circumstances in reaching the conclusion that they did. They had a fairly recent medical report, they also had the statements of the appellant herself during the course of the various internal proceedings that took place in relation to the matter, and they had the statements that were made on her behalf by the union official that represented her. In all those circumstances, we take the view that this careful decision of the Industrial Tribunal was well within the ambit of a reasonable decision by an Industrial Tribunal sitting as an industrial jury, and one which we could not possibly characterise as being either wrong in law or in any way perverse. Accordingly, for those reasons, we consider that this application does not give rise to any arguable point of law, and should be dismissed.