United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK:

1. The appellant, Mr Edwards was employed by the respondent Governors at Hanson School as a teacher from 1st September 1990 until his dismissal effective on 30th April 1998.
2. By an Originating Application dated 1st May 1998 the appellant commenced these proceedings in the Leeds Employment Tribunal complaining of unfair dismissal. Initially he put his claim on two grounds, first that his employers, and in particular the headmaster, Mr Chaplin, had been guilty of a series of dishonest acts leading to his dismissal, and secondly on the basis of breaches of the respondent's disciplinary procedures, which, he alleged, had been manipulated for the purpose of dismissing him. Having received the respondent's Notice of Appearance, which alleged that the dismissal had been by reason of ill-health, a reason going to his capability, he added a third ground, namely if that reason was made out, the respondent acted unreasonably in failing to follow the necessary procedures for a dismissal on ill health grounds.
3. The matter came before an Employment Tribunal, chaired by Mr E H J Record on 29th and 30th September and 1st October 1998. At that hearing the tribunal dealt only with the question of liability. The tribunal restricted the scope of that enquiry to the fairness of the dismissal on health grounds. They did not enquire into the appellant's allegations that Mr Chaplin had maliciously caused the appellant to become ill through stress.
4. The tribunals findings on liability, recorded in a decision with extended reasons promulgated on 3rd November 1998, may be summarised in this way. They found that the appellant had a history of intermittent absences through sickness starting in the year 1993-94. Then from September 1996 the appellant suffered a severe depressive illness which continued without a break until his dismissal. He was off work initially until 10th March 1997. He then returned to work briefly but went off sick again on 9th April 1997, never to return to work before his dismissal effective a year later. Medical reports were obtained by the respondent, but they were not shown to the appellant and he was not consulted about his condition.
5. On 18th July 1997 at a meeting of the school staffing subcommittee, at which the appellant did not attend, a decision was taken to dismiss him. A letter of dismissal was sent out dated 21st July 1997. However, the respondent realised that the procedure which they had used was inappropriate and the dismissal letter was rescinded.
6. A fresh meeting of the subcommittee was convened for 15th September 1997. This time the appellant attended with his trade union representative. The case for dismissal was put by Mr Chaplin on the basis of the appellant's history of absences. The upshot was a fresh decision to dismiss. He was given notice by letter dated 17th September 1997 which was to expire on 30th April 1998. In that letter the reason for dismissal was stated, we see from the tribunal's reasons, in these terms:

"As a result and after very serious and careful consideration of all the evidence submitted, I am writing to inform you that the decision of the Governor's Sub-Committee is that the level of your absence from school is no longer sustainable and the duty or incapacity to fulfil your contract of employment owing to ill-health, that you be given notice of dismissal from your post as teacher at Hanson School with effect from 31 December 1997."

7. Meanwhile, an internal appeal to the Governors was heard on 15th December 1997. The appellant did not attend, feeling unwell at that time. The decision to dismiss was upheld.
8. On the facts as found, and briefly summarised above, the tribunal held that the reason for dismissal was incapacity by reason of long-term sickness. That was a potentially fair reason falling within the category of capability for the purposes of the Employment Rights Act 1996. However, the tribunal went on to find that the dismissal was unfair due to lack of proper consultation with the appellant.
9. The question of remedies was adjourned, the tribunal indicating, without deciding the question, that its view at that stage was that had a fair procedure been followed dismissal would have been inevitable. Equally, there appeared to be no grounds to the tribunal for reducing the basic award.
10. The remedies hearing took place before the same tribunal on 14th January 1999. The appellant sought the remedy of compensation. The tribunal awarded him a basic award calculated at £2,310. As to the compensatory award the tribunal heard that the appellant remained unfit for work as at the date of the remedies hearing. On the basis of the medical evidence obtained by the respondent at the time of the dismissal the appellant would never have recovered sufficiently to return to work. In these circumstances the tribunal found that had a proper procedure been carried out dismissal would have been inevitable.
11. The tribunal then considered an argument advanced by the appellant that his illness was caused by the conduct of Mr Chaplin and that in turn led to his dismissal. That should sound in compensation.
12. The tribunal rejected that submission, finding that any cause of action based on injury caused by the actions of Mr Chaplin was a matter for a civil suit. It did not affect the question of compensation for unfair dismissal.
13. In these circumstances the tribunal found it just and equitable under s. 123(1) of the 1996 Act to make no award under the compensatory head.
14. Against that finding the appellant now appeals. Mr Edwards accepts that it was open to the tribunal to conclude that on the evidence dismissal on grounds of ill health capability would have been inevitable had a proper procedure, including consultation with the appellant over his medical condition, been followed. However, he submits first on the basis of Steel Stockholders (Birmingham) Ltd v Kirkwood [1993] IRLR 515, a decision of the Scottish EAT, that the Employment Tribunal wrongly dealt with the case as one of procedural rather than substantive unfairness. We think that the first difficulty with that submission is that the distinction between procedural and substantive unfairness identified in Kirkwood has since been disapproved by the Court of Appeal in O'Dea v ISC Chemicals Ltd [1995] IRLR 599. However, even if that distinction can properly be made, it is quite clear that the tribunal approached the matter, we think correctly, on the basis of procedural unfairness.
15. Secondly, he relies on the Court of Appeal decision in Devonshire v Trico-Folberth Ltd [1989] ICR 747, for the proposition that the procedure contemplated by the Employment Tribunal at the remedies stage was different from the procedure actually followed by the respondent.
16. Devonshire was a case in which the employer dismissed the applicant originally on the basis of her attendance record. At an internal appeal the dismissal decision was upheld but for a different reason, namely medical grounds. On a complaint of unfair dismissal the Employment Tribunal held that dismissal for the latter reason was unfair, but had it been for the original reason it would have been fair. The employer appealed against the award of compensation made in that case on the basis that it was not just and equitable to award any compensation for unfair dismissal where dismissal for the original reason would have been fair. The EAT and Court of Appeal rejected that argument. The Court of Appeal held that the employee would not have lost her job for the reason ultimately relied on by the respondent.
17. However, in the instant case the reason put forward by the respondent, originally contained in the final letter of dismissal dated 17th September 1997, and accepted by the Employment Tribunal at the liability hearing stage, was ill health incapability. In these circumstances it seems to us that it was for the tribunal to judge what would have happened had dismissal for that reason followed a proper procedure. They asked themselves the correct question and answered it permissibly.
18. In these circumstances, we must dismiss this appeal.