United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CAVANAGH (OF COUNSEL) INSTRUCTED BY: MR S R SHEPHERD MESSRS SHEPHERD OAKES & CO SOLICITORS KING EDWARD HOUSE 1 JORDANGATE MACCLESFIELD CHESHIRE SK10 1ES


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us by way of a preliminary hearing the appeal of Mr T R Moore in the matter of Moore v Zeneca Ltd.
2. Mr Moore was a Senior Business Manager for Zeneca. On 10^th February 1998, he lodged an IT1 giving the date of termination of employment as 14^th November 1997. He claimed unfair dismissal. He had solicitors acting for him at the time and his grounds of application occupied some three and a half pages of typescript.
3. On 6^th March 1998, those grounds were answered by Zeneca's response at much the same sort of length. Zeneca, too, had solicitors acting for them. In October 1998, the matter first came before the EAT. Mr Moore had put in a long proposed amendment to his IT1 and at the Employment Tribunal the Chairman had refused leave for that amendment. The Chairman at that time also refused an application by Mr Moore that Zeneca should disclose to him an outside Personnel Consultants' Report that has been called the "Talking People Report", "Talking People" is the name of the outside firm of consultants.
4. The matter came to the EAT and that the EAT held that the Chairman had been right to refuse the amendment. Then, or thereabouts, Zeneca had volunteered disclosure of a management summary of the Talking People Report but the EAT ruled that Mr Moore was entitled to see the complete report and accordingly he got it. There was then a hearing spread over 5 days or so before the Tribunal at Manchester under the Chairmanship of D A Leahy. The unanimous decision, sent to the parties on 5^th July 1999, was that Mr Moore was not unfairly dismissed. The extended reasons occupied some thirteen pages of close typescript. On the 13^th August 1999, Mr Moore lodged a Notice of Appeal. The shape of the Notice of Appeal is rather on the lines that a general complaint is specified and then particulars develop it. We have also had the benefit of a subsequent skeleton argument prepared by Mr Cavanagh on behalf of Mr Moore, and, Mr Cavanagh has addressed us this morning. It is possible, we think, to deal with the nature of the appeal by looking at the detailed particulars. If they fail to illustrate some point of law which has an arguable prospect of success, then, of course, we would have to dismiss the matter at this stage; otherwise the matter will obviously be required to go to a full hearing.
5. And so we begin a journey through the Notice of Appeal as amplified in the skeleton argument. The first ground that we deal with is that on page 3 of our papers:-

(iv) The Employment Tribunal erred in law by failing to make or set out any finding on a crucial matter in regard to a meeting held between the parties on the 11^th November 1997.

And the passage which is particularly in point is on page four and it is an extract from a report the whole of which has been put in by Mr Cavanagh:-

(c) the notes record that, at the meeting, the Appellant's line manager, Mr Kay, stated to the Appellant:

"Tell me two things that would help you return."

The Appellant's response was:-

"If I got a copy of the report. It would have helped. I know you [ie. Carmen Littler of the Respondent] tried to get me a copy but you couldn't".

(d) the omission by the Employment Tribunal to refer to this was of crucial importance

That is a point taken in the Notice of Appeal and has been emphasised in the course of argument by Mr Cavanagh. But the Tribunal do deal with this area. They refer to the matter in their paragraph 21, and towards the beginning of that paragraph they say:-

"We do not intend to rehearse all that appears in that note [that is in reference to the complete note] but it is plain that the dialogue wrote down towards the end of the meeting and that it ended up with the parties, if anything, more alienated than when they had started".

6. As for the Talking People Report, the Tribunal was, of course, not obliged to accept Mr Moore's view that a sight of it would have helped him to return to work or would have favourably affected his health. The Tribunal held that at that meeting Mr Kay of Zeneca had tried to be helpful but was met, it would seem, with an unhelpful response. In the middle of paragraph 21 we find:-

"At the meeting Andrew Kay stressed the need to have "a positive conversation" and, further, urged the applicant, "What is it, can't you tell us. Help us to help you". The response to that was, "I want an explanation of why secondments are handled so badly. I am off sick because I was put in a corridor next to the personnel guy and I would still kill him. Why shouldn't I kill him. The company just says come back and sit on the same corridor". Mr Kay's next move was to say "The whole point of this meeting is to try and get you back to work", and the applicant denied that he needed help".

When one looks at the transcript of the meeting or the note of the meeting, one sees that that was, indeed, said by Mr Moore.

7. Ultimately, Mr Moore was dismissed for failing to return to work despite being held fit to do so and failing to attend a meeting although being fit to return to work. There is no good reason amongst the facts found by the Tribunal to suppose that his fitness to work was affected by the non-disclosure of the Talking People Report or that a sight of it would have led him to return to work or to return to work earlier, given that he denied that he needed help in the passage that we have just read.
8. The Tribunal returned to the problem in paragraph 28, they say:-

"The respondent might have found a resolution had it disclosed the report by Talking People, but its failure to do so did not of itself, in the context of the applicant's approach and the statements at the time, sufficiently exacerbate the situation as between the applicant and the respondent".

And on the next page, in paragraph 28 they say:-

"From the applicant's utterances throughout 1997, we entertain severe doubts as to whether or not the disclosure of that Report would have dampened down the fires of anger which he was feeling and done anything to conduce to his early return to work".

So the report may well be, no doubt was, relevant to Mr Moore's concerns but that is not to say that it was relevant to his health or to his willingness to return to work. The Tribunal heard the evidence on the point and we are unable to detect an error of law in relation to it. Mr Cavanagh treats the failure on the company's part to disclose the full report as a "procedural" defect. We are bound to say that we think that gives the adjective "procedural" a meaning that is not properly to be put upon it and to call it a "procedural" defect and then to refer to the well known Polkey case is, as it seems to us, not an acceptable argument because Polkey was dealing with procedure properly-so-called, namely the procedure once disciplinary investigation and process had begun. Here, disciplinary process never even began because Mr Moore did not attend at the convened meeting and, indeed, that was a principal complaint laid against him.

9. The next complaint with which we ought to deal is the one seen in the Notice of Appeal as follows:-

"(v) The Employment Tribunal further erred in law by substituting its own views in regard to the Appellant's employment rather than concentrating on whether the Respondent acted reasonably in treating its reason for dismissal as a sufficient reason for dismissing the Appellant."

10. The allegation is that in relation to disclosure of the Talking People Report, the Tribunal substituted its own reasons rather than examining whether Zeneca had indeed acted reasonably. In their paragraph, 29 the Tribunal said:-

"We are satisfied that the company conducted a more than adequate investigation and that, not least because of the time which has allowed the situation to resolve, and the attempts which had made to discuss it with the applicant, it handled the situation with a patience and sensitivity that was appropriate to the case".

And a little later in their paragraph 30:-

"We have considered the reasonableness of the respondent going ahead on 14^th November in the teeth of the applicant's GP's certificate that the applicant was not fit to return to work. We believe, for two reasons, that the respondent was entitled to do so".

11. We see the Tribunal to be there addressing the correct questions; they were asking themselves whether the employer had acted reasonably. They were right to raise that question and put it before themselves and we see no error of law in that treatment.
12. The Notice of Appeal next focuses on the finding or accusation by the company that what Mr Moore had been guilty of was gross misconduct. There is a reference in paragraph 29 that we should read. It says this:-

"The fact that the respondent had such immense difficulties with the applicant is not something we believe for which the applicant is subjectively, or for that matter, objectively blameworthy".

"The applicant was plainly throughout this time in a state of personal turmoil".

Then in paragraph 31 one finds:-

"To treat this as a summary dismissal for gross misconduct, simpliciter is to do no justice to the situation and, more particularly, to do no justice to the applicant, for whom we have considerable personal sympathy".

13. The argument is that these passages are mutually inconsistent and, moreover, that by indicating that there was absence of blameworthiness there cannot have been misconduct. We would readily accept that although the act speaks of dismissal on the grounds of conduct, it is implicit that what is in mind is misconduct. One can hardly dismiss a man for good conduct and so it has always been recognised that misconduct has to be shown when a conduct ground is relied upon.
14. The Applicant here, as the Tribunal held, was in a state of personal turmoil. It is worth reminding ourselves as to the extravagant way in which Mr Moore used language, so deep- seated was his anger or turmoil. Although, on the evidence, he was neither medically or physically ill, he had been talking about killing his colleague in the personnel department. We remind ourselves of our earlier citation "I'm off sick because I was put in the corridor next to the personnel guy, and I would still kill him, why shouldn't I kill him?". One can readily understand the Tribunal having sympathy for a senior manager, a graduate described as having had a glittering career, being brought to such a pass. They plainly took the view that Mr Moore was not deliberately or maliciously or intentionally choosing to cause difficulty with the employer, Zeneca, and that to that extent only he was not blameworthy as to the difficulties that were being created. He was not setting out to be difficult. But that sentiment does not deny the Tribunal the ability to decide, as they did, that the employer acted reasonably in dismissing him. Misconduct can be misconduct, whether it is intended to be so or not and whether it is intended to cause difficulties or not.
15. As for gross misconduct, the Tribunal considered the effect that such an adjective might have in Mr Moore's particular case. They dealt with that as follows:-

"It bears heavily upon the applicant that his employment has been terminated expressly by reason of his gross misconduct. Gross misconduct is indeed a bad brand to carry through one's working life and with which to try and obtain alternative employment, not least at the applicant's age".

And the Tribunal continued, including the quotation on which Mr Moore relies as follows:-

"This is not, however, by any test, a straightforward case of gross misconduct. Gross misconduct is no more than a label attached to the basis upon which the respondent, at law, approached the situation with which it found itself confronted. We have no doubt that this employer sincerely regretted having to take the actions which it took with regard to the applicant and that the applicant, in a state of considerable personal turmoil, was faced with a desperate dilemma as to what he should be doing in November in the teeth of his own doctor's advice. To treat this as a summary dismissal for gross misconduct simpliciter is to do no justice to the situation and, more particularly, to do no justice to the applicant, for whom we have considerable personal sympathy".

16. Now the adjective "gross" is a very stern label to apply to Mr Moore and the Tribunal was concerned at the injustice of that particular label. Nonetheless as it seems to us, they unquestionably hold that the dismissal was not unfair. In the last lines of their paragraph 30, which precedes the passage which we have just read, they say:-

"we find that the employer in these circumstances was entitled to rely upon the advice given to it by Dr Heron and to conclude in October that the applicant was fit to work - certainly to hold that belief on 14^th November – and in the circumstances of the applicant's intransigence and his failure to attend the meeting on 14^th November, the respondent acted fairly dismissing him".

17. This Appeal Tribunal considers it right of the Tribunal below to concentrate not on the label "gross" applied to the misconduct but to the conduct itself; on the dismissal and the reason for it. Moreover, in relation to the dilemma in November, the Tribunal had, in the preceding passage, held as follows:-

"The second reason is that both the applicant and his GP in November conceded that the Applicant was not unwell, mentally or physically".

18. It is wrong, as it seems to us, to seek to elevate the Employment Tribunal's expressions of sympathy into an error of law based on there being no misconduct. Plainly, the references to intransigence and to failure to attend the meeting represented misconduct and were held so to do and the expression as to an absence of blameworthiness, it seems us, can only reasonably, when one looks at the whole decision, be taken to be a reference to there being no intent of a malicious or deliberate nature on Mr Moore's part to cause difficulty.
19. Another ground, and again it is in the Notice of Appeal, is one partly dealt with already. It says this at 8(d):-

"further this Honourable Court had decided in Lewis-and-John Anderson & Co Ltd [1982] IRLR 233 that fault on the part of employee is a necessary condition for a dismissal by reason of conduct to be fair. The Employment Tribunal erred in law in failing to apply that principle".

20. Had the Tribunal, in referring to Mr Moore's absence of blameworthiness, meant that he was not guilty of any misconduct, then, of course, we would have had to see the force in that criticism but in context it has to be seen as part of the overall findings of misconduct by the Tribunal in relation to Mr Moore. Whilst medically and physically not ill and able to work (and that was the Tribunal's ultimate view of the evidence) he had nonetheless a severe personal crisis and was worked up into a state which the Tribunal described as personal turmoil. The context suggests, as we have mentioned, that the Tribunal, whilst finding misconduct, nevertheless thought it not to be deliberate or malicious. So understood there is no conflict between not finding Mr Moore blameworthy and yet finding him guilty of misconduct. Mr Cavanagh, of course, indicates he has no intention to slight the Tribunal, but it is almost a slight, given the care with which this Tribunal seems to have addressed the problem, to suppose that the Tribunal simultaneously held that Mr Moore was not unfairly dismissed and yet was entirely free of misconduct. We regard ourselves as entitled to understand the reference to blameworthiness, in context, to mean what we have said it means.
21. That the Tribunal found misconduct on Mr Moore's part cannot be doubted. He did not care for the label "gross" but they did say

"crucially, on 14^th November, knowing exactly what he was facing, the Applicant took a decision not to attend a disciplinary meeting. That very fact in the context of what he knew the employer knew and believed as to his condition could, he must have anticipated, having only one outcome and that was his dismissal".

22. There is a final point in the Notice of Appeal that has not been emphasised orally, but for all that, perhaps we ought to deal with it and that is on our page 8, letter (e):-

"Further the Employment Tribunal erred in law in concluding that the Applicant was not unfairly dismissed for alleged gross misconduct in not attending a disciplinary meeting when as the Respondent well knew the Applicant's GP had issued a medical certificate for the period during which the disciplinary hearing was to be held".

23. The Tribunal was referred to the East Lindsay District Council v Daubney [1977] IRLR. They recognise that there was here a medical issue. In the Daubney case the medical evidence relevant to the employers case as to the employee's health had come exclusively from the employer's side. The employee in that case was not consulted about the medical position and was given no opportunity to take his own medical advice. It is, of course, something that does not follow from the Daubney case that the employer is necessarily wrong to act on the medical advice that he gets from his medical advisors. In paragraph 17 of the Daubney case, the EAT, Mr Justice Phillips presiding, said of the employer's doctor:-

"and on the whole we think that the district council would have been entitled to act here on the opinion of Dr Hague, brief as it was, if they had consulted Mr Daubney and discussed the matter with him".

24. Our case is quite different. It is not a case in which there was no consultation with the employee about his medical position or no consultation with the medical advisers. The Tribunal held that Dr Heron, who was Zeneca's occupational health physician, was a man of considerable qualifications. They said:-

"he holds the qualification and membership at the Royal College of Physicians and that is a substantial qualification, usually the highest achieved by consultant physicians in general private practice within the hospital service".

25. Dr Heron, as we understand it, actually gave evidence to the Tribunal. Dr Heron consulted Mr Moore's own GP. Dr Heron also bought in an independent consultant psychiatrist, a Dr Peter McKeown, and Dr McKeown reported to Dr Heron and they concluded that Mr Moore was fit to return to work. Zeneca, moreover, had made sure that the doctors understood what it meant for Mr Moore to return to work. Obviously, it is an important consideration for the doctors not to consider just in some loose and general way what a return to work comprises; it is better that doctors should know precisely what would be expected of the man or woman on their return to work and the Tribunal held this:-

"in other words the respondent had made sure that before pronouncing the applicant fit to return to work the two doctors, Heron and McKeown, knew exactly what work he was expected to be fit for or might be declared to be unfit for".

26. Dr Heron advised, and this is set out in paragraph 22:-

"Dr Heron again spoke to the applicant's GP on 11 November and again met the applicant. At page 761 he reiterated his opinion that the applicant was fit to work. He reported that he and the GP had "agreed that Mr Moore [is] not suffering from any illness at this time" and he reported that at his meeting with the applicant on 12 November, "I restated my opinion that he was fit for work and the absence of any illness. Mr Moore agreed that this advice was appropriate". Dr Heron advised that the applicant should return to work and do so on "a phased basis" ".

27. The Tribunal held on this medical side of things, as in the passage we have already mentioned from paragraph 10. They also said:-

"The second reason is that both the applicant and his GP in November conceded that the applicant was not unwell mentally or physically".

That had been the case which Zeneca was putting from the outset; that can be seen as early as their IT3 because in paragraph 7.3, at our page 31, it says:-

"In addition, Dr Heron spoke to the Applicant's GP on 28^th October and 11^th November 1997 during which conversations the GP agreed with Dr Heron that the Applicant was not physically or mentally ill"

28. There is no indication that Mr Moore's own GP gave evidence on the medical aspect of things and the Tribunal was entitled to prefer Dr Heron's view if there was a conflict, if indeed, there was a conflict. If, therefore, some certificate had been put in from Mr Moore's GP, the Tribunal was nonetheless entitled not to pay very great weight to it and it had been clearly indicated to Mr Moore that he was going to be regarded as fit to return to work and that his job was in jeopardy if he failed to attend. It cannot be said to be error of law for the Tribunal to have preferred the medical evidence as adduced by Zeneca as against the, as it would seem, unexplained certificate, if there was a contemporary certificate, of Mr Moore's own GP.
29. This is a case in which it seems to us that notwithstanding an impressive argument from Mr Cavanagh, some of which could perhaps be described as the wielding of a fine tooth comb, if one stands back and looks at the decision as a whole, it hangs together, it makes sense, and, as far as we can see, contains no arguable error of law. Accordingly, even at this preliminary stage, we see it as proper to dismiss the appeal.