United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS M WOOLACOTT (Solicitor) Messrs Woolacott & Co Solicitors 71 South Street Lancing West Sussex BN15 8AP


 


JUDGE WILSON: This has been the preliminary hearing of the proposed appeal by the original applicant against the decision of the Employment Tribunal that his dismissal for capability was fair and therefore that the application to the Employment Tribunal should be dismissed.

1. Mrs Woolacott has appeared on behalf of the appellant today, having represented him before the Employment Tribunal. She has presented grounds of appeal which are amplified in her Notice of Appeal.
2. The facts of the matter disclose a situation which, in human terms, is a sad one. The appellant had worked for very many years for the respondent company until he had to undergo a triple heart bypass operation on 4th April 1998. Subsequently, having recovered from that surgery, he was seen in July and the company was found to have accommodated his request to return to part-time work. The Employment Tribunal found that there was no doubt that the employer had gone out of its way to assist the appellant in that regard.
3. There came a time when he was told that he would have to consider a full time return to work. The upshot was that he commenced work on a rotating day shift avoiding the burden of working seven days at a stretch on occasions by taking certain annual holiday days. The tribunal found that the employer's evidence was:

"11. … that they were concerned about the physical well-being of the applicant in regard to carrying out these tasks and they realised that he was beginning to indicate by his conduct at work that he was not able to cope with all of the tasks that they would have expected of him and obtained from the other members of the team who were working with him."

4. In February there was an appraisal discussion between representatives of the company and the appellant. It was further made clear that unless there was an improvement his job might well be on the line. It is noticeable from the Notice of Appearance that the appellant had mentioned fresh medication in February and also that his general practitioner did not recommend him being off sick or certified as unfit.
5. There was a further meeting and there were reports to the respondent company that although his attitude was improving, his performance did not improve. Ultimately, on 7th April he was told that because his performance was not of the standard required his employment must be terminated. The reason for termination was capability by reason of ill health.
6. The principal complaint about the decision of the tribunal is that the tribunal failed to direct itself in accordance with what is set out in the judgment of this tribunal in East Lindsay District Council v G E Daubney [1977] IRLR 181. With regard to the particular aspect of the matter, in paragraph 17 Phillips J found that in that case, although the report about the health of the employee there verged on the inadequate, nonetheless:

"… it seems to us on the whole that the Industrial Tribunal required overmuch of the District Council when saying that they should have demanded a detailed medical report, and should have questioned Dr Haigh about it."

Subsequently, in paragraph 18, Phillips J stated that:

"… We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves about the true medical position, it will be found in practice that all that is necessary has been done. …"

In this case there had been ongoing discussions, either formal or informal, over a period of many months and in any case, any employer is entitled to be guided by the evidence of his eyes on the particular worker' s performance.

7. As we stated at the beginning of this judgment, this is, in human terms, a sad case, but we can see that it would have no prospect of success were it go to full argument because, it seems to us, that the tribunal have fallen into no error of law. Accordingly, the appeal must be dismissed at this stage.