United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P NORBURY (Solicitor) Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB
For the Respondent	MR S G BAKER (of Counsel) Messrs Pearson Williams Solicitors 35 High Street Uppermill Oldham OL3 6HS


 


JUDGE COLIN SMITH QC: This is an appeal by Wincanton Ltd against the decision of an Industrial Tribunal sitting at Manchester on 13th September 1995, when the Industrial Tribunal held that Mr K J Allen had been unfairly dismissed by the appellants on 27th April 1995 from his employment with the appellants as a warehouse operative. Extended reasons for the decision were sent to the parties on 5th October 1995.

Facts found by the tribunal

In finding the facts as it did, the Industrial Tribunal preferred the evidence given by the respondent and his witnesses to those of the appellants. The appellants had a substantial warehousing and distribution depot in Middleton. It provided distribution services to the Tesco Supermarket chain, distributing goods to Tesco stores in Middleton and Doncaster. It was a very substantial operation involving a large number of permanent and casual staff. The need for casual staff was reviewed according to need on a daily basis. The respondent worked only 25 hours a week, and had been employed since 3rd September 1990 with an exemplary record.

As appears from the findings of the Industrial Tribunal, his work involved a variety of different tasks, including some relatively heavy duties, particularly picking goods, and in addition other lighter tasks such as 'dekit' involving moving empty cases about the warehouse with a mechanical truck and other lighter duties.

On 9th September 1994 it appears from the findings of the Industrial Tribunal that the respondent suffered an accident at work when a heavy carton fell onto the back of his head injuring his neck, left shoulder and left arm. He was off work until November 1994 and then returned unsuccessfully between 13th and 24th November 1994.

At subparagraph 5(f) the Industrial Tribunal found as a fact that in November 1994 the respondent had complained to the operations manager that he found the work that he had resumed to be painful when he started to lift goods. He was sent home and it was arranged that he should see an orthopaedic surgeon by Mrs Carter the appellants' senior occupational health officer. A report was prepared by Mr Williamson, the orthopaedic surgeon, dated 4th February 1995, which, in our judgment, from a plain reading of the document was in terms based upon the premise that the respondent's job "involves the repetitive lifting of weights up to a maximum weight of about 20lbs". The Industrial Tribunal recite the conclusion of the report namely that it was unlikely the respondent would return to work within the next six months; the report also concluded that the chances of long-term symptoms were about 20 to 30 per cent but it might take two to three years for the symptoms to end. As is apparent from the Industrial Tribunal's findings and from the document, Mrs Carter discussed the report with the respondent on 15th March 1995, when he agreed its contents, and she then prepared her own summary dated 20th March 1995 for Mrs Johnson, the appellants' personnel manager.

The Industrial Tribunal then made important findings in subparagraph 5(h) of its decision with regard to the meeting which had taken place on 27th April 1995 which led directly to the respondent's dismissal.

"... There was no discussion at that meeting of other work or other duties which the applicant might perform, nor indeed had this ever been discussed between the applicant and Mr Williamson, and the applicant and Mrs Carter in their previous meeting in January and March of 1995. There was no consideration given at these meetings in January, March or April to any question of alternative work by way of re-deployment. The respondents maintained that as far as re-deployment was concerned that was out of the question as there was no alternative position which could be considered for the applicant. ..."

In subparagraph 5(j) the Industrial Tribunal recorded that the respondent had been dismissed on 27th April 1995. They then set out the reasons in that subparagraph why he did not in fact pursue an internal appeal.

Finally, the Industrial Tribunal made other important findings of fact in subparagraphs 5(l) and (m) of its decision. Thus in 5(l) the Industrial Tribunal found as a fact:

"... that as far as the duties were concerned performed by the warehouse operatives, some of them were heavier duties and some were lighter duties. Picking of goods in order to make up a cargo consignment to be delivered to one of Tesco shops was regarded as a heavy duty. But, as far as re-stacking, checking and "dekit" were concerned those were regarded as lighter duties and it was plain from the evidence given and accepted by the Tribunal that some operatives were able to spend a great deal of time on such lighter duties as dekit as a matter of fact."

Then there is a further subparagraph which sets out circumstances relating to other employees, particularly a driver and another warehouse operative which we have taken into account and which is unnecessary to read in the course of this judgment.

The decision of the tribunal

Having found that the reason for dismissal was capability and a potentially fair reason, the Industrial Tribunal went on correctly to refer to section 57(3) of the 1978 Act, and reminded themselves that they must not substitute their own view for that of the appellants. The Industrial Tribunal went on to find that the appellants' actions with regard to the dismissal were not reasonable in all the circumstances. It is clear that on a fair reading of their decision they were basing it on two grounds, namely:

(1) that the decision to dismiss was not a reasonable decision because the appellants did not give any or sufficient consideration to the respondent performing lighter duties; and

(2) that the appellants acted precipitately in dismissing the respondent in the light of the particular circumstances of their workforce and in all the circumstances.

With regard to the first basis of their decision, it is clear from paragraph 7 that the Industrial Tribunal concluded that the appellants had acted unreasonably in failing to give consideration to the question whether the respondent could be provided with work consisting of lighter duties such as re-stacking, checking and dekit. In our judgment it is plain that they found as fact that the conclusions expressed in Mr Willaimson's report were predicated on the basis only of the heaviest of the duties which the respondent could be asked to perform. They considered that a large employer such as the appellants with a large and fluid workforce should have considered whether it was possible to assign the respondent to lighter duties, particularly as they had found as a fact that such actions had been taken in the past. That is a summary of the first basis of their decision, but it is necessary, in our judgment here, to set out their wording and we refer in particular to parts of paragraph 7 of their decision:

"... Whilst it was accepted that a medical examination had been carried out by Mr Williamson the Tribunal was not satisfied on account of the details that appeared in his report and that which was in Mrs Carter's report that all aspects with regard to work that the applicant was able to perform or might perform were considered. The Tribunal was not satisfied that Mr Williamson had a clear picture of all the duties which the applicant was expected perform. His report suggest that in assessing the job carried out by the applicant it had been directed to the question of picking only the heaviest of all the duties. The Tribunal was not satisfied that he had considered the issue of re-stacking, checking and also dekit as possible lines of work that could be followed by the applicant to enable him to do some of the lighter duties which were available to a warehouse operative. Furthermore the Tribunal was not satisfied on a balance of probabilities that those had been considered in consultation with Mrs Carter subsequently in March 1995. It was accepted by the respondents that there was no consideration given to any other work at the meeting held on 27 April 1995 and there was no consideration to the possibility that the lighter duties within the ambit of the warehouse operative's work was properly considered as it should have been in the Tribunal's view at that stage. In the context of this employer in the circumstances of such a fluid work force in a warehouse situation it seemed to the Tribunal that the actions of the respondents in not considering the possibility of lighter duties was not reasonable in all the circumstances. On the evidence employees were as a matter of fact assigned to lighter duties in the warehouse to accommodate specific work requirements or needs by an employee (such as a driver who was disqualified from driving)."

Additionally as a second basis for their decision, the Industrial Tribunal found that, on the basis that lighter duties were not immediately available, the decision of the appellants to dismiss instead of retaining the respondent as a valued permanent employee for a period until such duties might become available, was not in all the circumstances the action of a reasonable employer in the circumstances of the appellants, including the circumstance that no financial loss would be sustained by the appellants in so doing. Accordingly for that second reason the Industrial Tribunal also found that the dismissal was unfair.

Submissions on appeal and decision on appeal

It was submitted to us by the Solicitor for the appellants, Mr Norbury, that the Industrial Tribunal, despite paying lip service to the rule that they must not substitute their decision for that of the reasonable employer, had fallen into the trap of substituting its own decision instead of properly judging the reasonableness of the employers' decision. It was strongly submitted to us that the appellants here had acted in accordance with medical advice, namely the report from Mr Williamson, and that their decision must therefore have been within the band of reasonableness. It was submitted that the effect of the Industrial Tribunal's decision was to criticise the medical specialist Mr Williamson and to find that he should have written a different medical report. It was submitted that the appellants were entitled to take the report at its face value, especially when its contents were not challenged by the respondent, and that they were entitled to conclude that the respondent was not fit for any kind of work as warehouse operative. It was on this basis that the first ground of the Industrial Tribunal was strongly challenged. With regard to the second basis, it was submitted to us that it was quite unreasonable to expect an employer to keep a post open for many months with an uncertain prognosis, and it was irrelevant, so it was submitted, to the fairness of the dismissal that the respondent was on statutory sick pay.

In our judgment, however, those submissions to a considerable extent amounted to an inaccurate characterisation of the Industrial Tribunal's decision. Of course it must be correct that an Industrial Tribunal must not second guess an employer who is relying upon an expert report from a doctor, nor could it be right for an Industrial Tribunal to suggest that in some way the doctor got it wrong. But in our judgment, Counsel for the respondent was correct in his submission that the Industrial Tribunal here was doing no such thing. Properly understood, in our judgment, the Industrial Tribunal's criticism was directed not at the doctor or his report, but rather at the failure of the appellants to make sure that all the necessary information was placed before the doctor before he was asked to express an opinion upon which the appellants were going rely in deciding whether to dismiss the respondent. Strong support for this proposition, in our judgment, is to be found in a passage from Volume 1 of Harvey at paragraph 1230 - 1240 as follows:

"Clearly in most cases an employer who dismissed in accordance with medical advice will be acting fairly, However, the employers may have to satisfy the tribunal that the relevant medical expert was properly and fully advised as to the relevant material. If all relevant material was not put before him, the tribunal will be entitled to hold that the investigations have been inadequate and that the dismissal is accordingly unfair (see Ford Motor Co Ltd v Nawaz [1987] IRLR 163, [1987] ICR 434, EAT)."

In our judgment it is no answer to that proposition for the appellants to argue that it was for the respondent here to give the necessary information to the doctor, or that the respondent agreed the report. It must be, in our judgment, for the appellants as employers to provide such information to the doctor, since it is they who have to decide whether to take the decision to dismiss. Counsel for the respondent correctly submitted that the onus on an employer in such circumstances does not begin and end with simply getting a medical report that a man is not fit for work. The employer must in addition make sure that the report addresses the relevant issues, otherwise there is a real danger that an unfair and unjust decision to dismiss might be taken. We also agree with Counsel for the respondent that the Industrial Tribunal were fully entitled to conclude that apart from not briefing the doctor adequately or at all as to the range of duties carried out by the respondent and whether he was fit for some but not others, the appellants themselves had not adequately considered whether the respondent could perform the lighter alternative duties which the Industrial Tribunal found as a fact were available. In this regard in paragraph 7 the Industrial Tribunal specifically found as a fact that there was no consideration given to any alternative work at the meeting on 27th April 1995, or as to the possibility of the respondent being able to perform lighter duties within the ambit of a warehouse operative's work. In our judgment it is almost invariably a most important consideration where a question of dismissal for incapability due to ill-health is under consideration for an employer to investigate whether it can accommodate an employee who is not able to carry out his job to the full extent. See in particular Garricks (Caterers) Ltd v Nolan [1980] IRLR 259. Accordingly in our judgment, on the first basis of their decision the Industrial Tribunal correctly directed themselves on the law made unexceptionable findings of fact and did not substitute their own decision for that of the appellants, but rather for good reason concluded that the appellants decision was unreasonable. In our judgment the fact that the Industrial Tribunal did not recite the range of reasonable responses test did not in any way impugn their approach which was correct.

Since this was, in our unanimous judgment, a valid ground for the decision of the Industrial Tribunal that the dismissal was unfair, we do not consider it necessary to say so much about the second basis for their decision. However, our conclusion is that whilst we do not consider that the fact that the appellants would have suffered no loss by retention of the respondent was a valid reason standing alone for the Industrial Tribunal's decision that the dismissal was unfair, nevertheless it is plain, in our judgment, from looking at the overall reading of this part of the decision, that the decision on this basis was also sound and disclosed no error of law. The Industrial Tribunal plainly had in mind the guidelines in Spencer v Paragon [1977] ICR 301, namely whether in all the circumstances, the employer can be expected to wait any longer, and having implicitly asked themselves the right question, we consider that there was a sufficiently strong factual basis for the Industrial Tribunal properly to conclude that the appellants had acted unreasonably in not keeping the respondent on for a longer period of time in all the circumstances. In our judgment the Industrial Tribunal were entitled to conclude that in the case of a valued employee like the respondent on the one hand, and a substantial employer with a large and fluid workforce being reappraised on a daily basis like the appellants on the other, it was unreasonable for the appellants to dismiss the respondent at the time and in the circumstances that they did. Accordingly, in our judgment, for those reasons, this appeal must be dismissed.

Legal Aid taxation for the respondent granted.