United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M COXON (Solicitor) Leicester Law Centre 122-124 Granby Street Leicester LE1 1DL
For the Respondent	MR J MOFFETT (of Counsel) Instructed by: The Solicitor Leicester City Council New Walk Centre Welford Place Leicester LE1 6ZG


 


JUDGE PETER CLARK: This is an appeal by Ms Williams against a decision of the Leicester Industrial Tribunal sitting on 16th July 1997, dismissing her complaint of unfair dismissal against her former employer, Leicester City Council. Extended reasons for that decision are dated 4th August 1997.

The facts were not materially in dispute, although where a conflict occurred the tribunal preferred the evidence given on behalf of the respondent.

The appellant had been employed as a centre attendant at St Margaret's Swimming Bath for some 11 years when, in January 1996, she suffered an injury to her ankle at work. She was treated by her general practitioner and saw a Consultant. She was also seen a number of times by an occupational health service doctor, Dr Kothari.

Dr Kothari was in contact with both the GP and the appellant's Consultant, and in June, July and August 1996 he advised her line manager, Mr Rowley, that the appellant would be fit to resume work subject to certain temporary restrictions, which meant avoiding prolonged walking. She could do office work. During that period Mr Rowley made enquiries within the leisure services section, but no suitable alternative work was available.

In September 1996 the OHS advised that the appellant was not fit to resume light work, she had a chronic condition and her attendance level was unlikely to improve. She had not then resumed any work. However, she was not said to be permanently unfit for her former occupation and as a result the respondent's light duty procedure, which provided for preferential treatment in relation to redeployment, was not invoked.

A series of four formal meetings took place between 3rd May and 19th August 1996, involving the appellant, her trade union representative and the personnel officer, Ms Bhanji. On the last occasion the appellant said she was not fit for any work. A vacancy in the Leisure Services Section was discussed; the appellant was invited to apply for it but decided not to.

A further meeting was held on 20th November. The latest OHS report was considered. She declined a suggestion that a further GP's report be obtained before a final decision was made about her continued employment. In the event, Mr Rowley decided to dismiss her on grounds of incapability.

Against that decision she appealed.

The Appeal Committee sitting on 30th April 1997 adjourned for further information to be obtained from Dr Kothari in order to understand why permanent redeployment could not be an option. He advised that her condition, although chronic, could not be said to be permanent. Also, he advised that her attendance levels were unlikely to improve and so he could not recommend her for the light duty procedure. In these circumstances the Appeal Committee decided that the appellant could not be put back to work in any capacity and dismissed her appeal.

The tribunal found that the reason for dismissal related to the appellant's capability and that the respondent had acted reasonably in treating that reason as a sufficient reason for dismissal under s. 98(4) of the Employment Rights Act 1996. They found that Mr Rowley fully followed the respondent's procedure, which had been agreed with the trade unions, and that the internal appeal had been fully and fairly carried out.

In this appeal Mr Coxon submits that the tribunal reasoning does not reflect a proper consideration of the factors identified in s. 98(4). In particular, no reference is made to the respondent being a large employer. We reject that contention; there is nothing to suggest that the tribunal did not have fully in mind the size and administrative resources of the respondent.

Secondly, he argued that the tribunal failed to take proper account of the paucity of medical information before the dismissing manager. Again, we see no force in that point. There had been proper consultation with the appellant, the OHS doctor had liaised with the appellant's GP and Consultant; no firm prognosis was possible, but the employer could not reasonably be expected to wait any longer before reaching a decision as to the appellant's continued employment.

Finally, was the procedure itself flawed? In paragraph 12 of the reasons the tribunal makes certain obiter observations about the need to re-examine the light duties procedure in the context of the Disability Discrimination Act 1995. However, that does not, in our view, undermine their finding as to the fairness of dismissal under the 1996 Act.

On the particular facts of this case it was not simply that the appellant had not been found to be permanently incapacitated for her job as a centre attendant, it was additionally that she would not be able to keep up an acceptable level of attendance in any capacity. Thus, the appeal committee found, alternative employment was contraindicated. That was a reasonable conclusion for the employer to reach, so the Industrial Tribunal found. In our judgment, that in turn was a permissible finding by the tribunal.

In these circumstances, we can discern no error of law in the Industrial Tribunal's approach, and accordingly, this appeal must be dismissed.