United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S PONTAC (of Counsel) Instructed by: Messrs Pattisons Solicitors 52-53 Russell Square London WC1B 4HP
For the Respondents	MR J HORAN (of Counsel) Instructed by: The Solicitor London Borough of Barnet The Burroughs Hendon London NW4 4BG


 


JUDGE HAROLD WILSON: This appeal has concerned the decision of the Employment Tribunal sitting in London (North) on 6^th and 7^th January 1998, which found that the appellant's dismissal was fair and therefore his claim was dismissed.

We are indebted to Ms Pontac and Mr Horan for their arguments and their skeletons, in particular to Ms Pontac for having focussed the appeal on one point. That point was her submission that the finding of the Employment Tribunal was perverse because it failed to identify which procedure for handling a situation like that with regard to the appellant had in fact been followed. Indeed, she submitted, it should be clear and accepted that the procedure which was followed was not the procedure for managing absence in the written procedures of the respondent Company, but for managing change.

The facts may be briefly stated. The appellant was a trainee surveyor but he was upgraded to surveyor and assistant surveyor and eventually found everything too much so that he was laid off sick in November 1994. During that month he was temporarily signed off sick, so the Employment Tribunal found, by the doctor or occupational health officer. He did not return to work with the respondents after that date, although he was not finally dismissed on capability grounds until December 1996. The appellant complained that the work pressures affected his health and there came a time when the respondent's doctor and the appellant's doctor would have signed him fit for work as an assistant surveyor, but the respondents failed to reduce his work load. Work-related ill health is the basis of his unfair dismissal claim. The appellant says that he applied for over 20 jobs. One was the Contract Monitoring Officer (Street Cleaning). For that position he was successful. Mr Horan tells us today that that would have involved going around to Council tenants as a public relations exercise to deal with complaints which they might raise with the Council. The appellant says that he was subjected to a medical, which is correct, but was nevertheless turned down. The appellant complains of an absence of line management and says that the decision that the ultimate dismissal was fair is, in all the circumstances, perverse.

Ms Pontac has taken us to the provisions of the two schemes. One is to be found at paragraph 5.12 of the respondent Company's procedures and the other at paragraph 6.1. She says that the onus in each of the two schemes is quite different. She says that here the respondent Company followed the scheme where the onus was on the employee to choose instead of the managing absence scheme where the onus is on the employer to find suitable work. She further complains that the appellant could never be on equal footing with other candidates and for that reason alone it was unfair. The appellant did in fact get the job, subject to a satisfactory medical. Ms Pontac further complains that that stage was unfair as well because it made the medical opinion itself central. It is clear from paragraph 28 that the appellant was not given the job because of what the doctor said. She says that while the offer of the job was subject to a satisfactory medical, the tribunal did not consider at all whether the proper procedures had been applied. For those reasons it was perverse for the tribunal to have found that the dismissal was fair.

Mr Horan commenced his submissions to us by pointing out that both procedures are called 'Redeployment' and by drawing our attention to the evidence from Lisa Ryan (page 76 of the common bundle) together with the evidence of Graham Beattie (at page 63). He submits that it is quite plain that the tribunal had evidence that it was provisions of the managing absence procedure which were followed, as set out in paragraph 5.12. There was the evidence of two witnesses to describe what practical steps were taken and what was actually done and that the tribunal was entitled to accept that evidence. He went on to say that Occupational Health Officers were involved. There were positive indications that managing absence procedure was being considered. In so far as it was not strictly followed, says Mr Horan, the evidence before the tribunal, as they found the facts, showed that the appellant was very generously treated.

We have considered all the arguments and all the papers that have been put before us and were before the Employment Tribunal, and we have considered the submissions that have been made. We cannot find any ground upon which to begin to consider or to find that this was a perverse decision by the tribunal. Accordingly, the appeal is dismissed.