United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS J SILLIFANT (Representative) c/o Devon Personnel Services Devon County Council County Hall Topsham Road Exeter Devon EX2 4QU
For the Respondent	MS M McCARTHY (of Counsel) Messrs Cann & Hallett Solicitors Trinity Court Southernhay East Exeter Devon EX1 1PG


 


JUDGE LEVY QC: Mr David Sawyer ["Mr Sawyer"] was employed by Exeter & Devon Airport Ltd ["the Authority"] from March 1989 which ended on 31st July 1997. He has been employed as a general duties assistant, aircraft marshaller and loader. He commenced proceedings in an Industrial Tribunal, on the grounds that he had been unfairly dismissed. His application was received on 3rd July 1997. His claim was that he has been injured at work, he had not recovered, and the employer has dismissed him. The accident to Mr Sawyer had taken place on 12th October 1996. He has been examined by Dr Beck who had reported on 15th May 1997.

"In conclusion, it is my opinion that Mr Sawyer has sustained severe nerve injury to his right shoulder. Hopefully the function of his shoulder will continue to improve, but this will probably take several months, and there is a possibility that there will not be a complete recovery."

The Authority's IT3 was received on 25th July 1997. Paragraph 6 of the its Answer reads:

"At the meeting with Mr Hogan on 5 June 1997, Mr Sawyer was accompanied by a friend; Mr Payne (Operations Director) was also present. Mr Hogan advised Mr Sawyer that, in view of the fact that it was not possible to know when he would be fit to return to work, the Company had concluded that his employment as a General Duties Assistant should be terminated on the grounds of ill health. He was also advised that the Company did not consider that there were any redeployment opportunities available which were suitable and safe for Mr Sawyer to undertake. Mr Sawyer was advised of his right of appeal to the Managing Director. Mr Hogan also told him that if further medical evidence came to light during his notice period that he was fit to work then the notice would be withdrawn."

There was a hearing before an Industrial Tribunal sitting at Exeter on 25th September 1997. The decision was promulgated on 7th October 1997. The decision of the majority was that the applicant was unfairly dismissed; and the remedy would be heard on a later date.

In their extended reasons, the majority took care to set out the law which they had to consider in paragraph 18 of the extended reasons:

"18. In practice, therefore, the respondents were faced with the two alternatives which were either to dismiss or wait until the medical position was clarified. The issue we have to decide, therefore, is quite narrow. We are conscious that we should not substitute what we might have done for what the respondents actually did. It is a question of whether their action was that of a reasonable employer."

They reminded themselves of the test in Spencer v Paragon Wallpapers Limited [1976] IRLR 373, where at the end of the judgment of the tribunal, Phillips J said:

"Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer? Every case will be different, depending upon the circumstances."

The tribunal go on in paragraph 20 to say this:

"20. The main reason why the respondents decided not to wait was financial. The Managing Director had instructed the departmental heads to review each case. There was concern at a continued payment while the employee was away and the additional burden on other staff and in particular the excess overtime being paid at an enhanced rate."

The tribunal then deal with the arithmetic of waiting in paragraph 21. In paragraph 22 they said this:

"22. As for the argument that excessive overtime was being worked by the other members of the permanent staff, we cannot understand the logic. We are told that temporary staff were taken on to cover the summer period and we cannot see why that could not have applied to Mr Sawyer. Clearly he was not going to return during that period and so his absence could be covered in much the same way as an employer would cover maternity absence. The financial saving in our judgment, therefore, had not been properly considered. Once the figures were worked out it was insignificant."

The tribunal then considered the medical evidence in paragraph 23:

"23. The report of Dr Beck is understandably vague. The reasonable interpretation in the view of the majority is that the applicant was improving but his recovery would take several months and there was a possibility that he might not recover fully. What is meant by several months is open to debate but we consider that it means less than one year and reject the argument by one of the respondent's witnesses that it could mean more than one year. If that had been the case, Dr Beck would have said so. The normal meaning is something in the order of 5 to 7 months. In so far as that was uncertain, the respondents could have obtained a more reliable prognosis possibly from the orthopaedic surgeon."

The following paragraphs of the extended reasons are:

"24. Other significant factors to the majority are the long service of the applicant; the provision for long term sickness payments and so it is at least envisaged that a person can be off sick for a year yet still be paid; we take into account the proviso at the beginning of the sickness rule that there has to be a reasonable prospect of recovery and return to duty and our interpretation of Dr Beck's report is that there is such a prospect. The accident occurred at work and that is a factor which entitles the applicant to more consideration than if it had occurred outside work."

25. In the judgment of the majority therefore the respondents in this case acted unreasonably in all the circumstances. They should have waited longer or obtained more definite reports. Their reason for acting when they did does not in our judgment stand up to close scrutiny.

26. Our dissenting member, Mr Bowen, whilst agreeing with the conclusions of fact in this case, takes the view that the respondents were nevertheless acting within the range of reasonable responses to the circumstances. We are all mindful of the fact that we must not substitute our own view for what should have happened but consider the question of reasonableness. Mr Bowen's view is that the majority have substituted their own view and that is not the correct test."

It is apparent from reading these passages that the statutory test was one which they very much had in minds. There was clearly a discussion between the majority and minority as to the test and how it was to be applied to the facts as found.

From that judgment, there was a Notice of Appeal dated 18th November 1997. The matter came up for preliminary hearing on 21st January 1998 when a panel permitted the Appeal to proceed to a full hearing.

We have the benefit of argument on both sides today. The Notice of Appeal states three grounds of why it said that the decision was wrong.

The first is ground was substitution of views by the tribunal for the views of the Employer on two basis:

"(i) it substituted its own opinion of how it would handle arrangements for covering sickness absence rather than accepting the evidence given by the employer about how it in fact made these arrangement."

There was no substitution of the opinion as to how covering sickness absence was made. What the tribunal did was to consider the actions of the Authority.

The other basis was that:

"(ii) it substituted its own view of what it considered to be more cost effective arrangements for the evidential facts and costs given by the employer."

Again, this is a misrepresentation of the facts found. What the Industrial Tribunal did, as is apparent from the passage which we have read from the extended reasons, is to consider what were the financial costs to the Authority on which it placed reliance for dismissing Mr Sawyer and concluded that the additional costs of keeping him in employment for a little longer were insignificant. That is not a substitution of views of the employer. It is looking at the reasonableness of the employer's conduct.

Ground 2 of the Notice of Appeal is also in two parts. It commences:

"2. The industrial tribunal misapplied the law, or misunderstood the law:-

(i) in its view that an accident which occurs at work entitles the applicant to more consideration than if it had occurred outside work;

In that connection we have been referred to a relatively recent decision of this tribunal in London Fire & Civil Defence Authority v Betty [1994] IRLR 384, where Morison J headed a tribunal in which it was said, inter alia:

"An Industrial Tribunal should not be concerned to ascertain whether the illness which was the reason for dismissal was caused or contributed to by the employer. To introduce questions of the responsibility for illness or injury would take the Tribunal down a path that could lead to endless dispute on matters upon which it would have no special expertise."

Responsibility for the illness or injury to Mr Sawyer was not a matter which the tribunal took into account. The tribunal simply took into account that the injury to Mr Sawyer took place during the course of his employment. Given the provisions s. 98(4) of the Employment Rights Act 1996 is a factor which can properly be taken into account, particularly having regard to the passage from the judgment of Phillips J, to which we have already referred.

The second part of ground 2 suggests that the Industrial Tribunal misapplied the law or misunderstood it:

(ii) in its view that the contractual provision for long term sickness payments is indicative of the amount of absence an employee is entitled to."

Again, that is not what the tribunal did. It merely noted what the sickness provision was, as one of the factors which it had to take into account. This, in our judgment, is something also which it is entitled to do.

The third ground of appeal:

"3. The tribunal erred in law in that it drew an inference from the primary facts, which was not a proper one, that the financial consequences of their proposed approach to dealing with this matter were insignificant compared with the actions the employer in fact took."

It is clear from the passages of the judgment which we have read, that it was financial matters which drew the employer to take the action which it did. The tribunal having addressed itself correctly, came to the conclusion that that was not something that a reasonable employer in the circumstances of this case would have done. It may be that a different tribunal would have come to a different conclusion than did the majority. It has not been submitted that the decision of the majority is perverse. In our judgment, having properly directed itself, the majority was entitled to make the decision reached.

In the circumstances, this appeal fails and we dismiss it. We understand that the matter now goes back to the Industrial Tribunal for the remedy hearing, unless the parties agree figures in the meantime.

[The Appeal Tribunal were then informed that, pending and dependent on the outcome of this appeal, Mr Sawyer had been reinstated.]