United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KINGSLEY (solicitor) Messrs Anthony Kingsley & Co 1st Floor 331A Old Street London EC1V 9LE
For the Respondent	MR T MAWER (solicitor) Messrs Capsticks General Accident Building 77-83 Upper Richmond Road London SW15 2TT


 


JUDGE CLARK

1. This is an appeal by Ms Simon, the Appellant before the Stratford Employment Tribunal sitting on 11-12 January 1999 (Chairman: Ms V K Gay) against parts of that Employment Tribunal's decision promulgated with extended reasons on 27 January 1999.
2. The Appellant was employed by the Respondent as a Junior Sister, grade F at the London Chest Hospital until her dismissal effective on 28 May 1998. Following dismissal she presented an Originating Application to the Employment Tribunal on 22 June 1998 complaining of unfair dismissal, disability discrimination and breach of contract.
3. The Employment Tribunal dealt with the case in some detail in their reasons. We begin with the material facts as found.
4. On 30 June 1997 the Appellant suffered an injury at work causing her to be off sick with pain in the left elbow and shoulder/neck. Her absence was certificated by her General Practitioner. The Respondent acted as a concerned employer from the start, maintaining contact with the Appellant and keeping up to date with the state of her health.
5. Under the terms of her contract of employment she was entitled to 6 months full pay whilst off sick and thereafter a further 6 months on half-pay. Her entitlement to full pay expired on 23 December 1997; thereafter she went on to half pay. That entitlement was due to expire on 25 June 1998.
6. During her absence from work an E grade nurse acted up to cover the Appellant's responsibilities as ward sister and an agency nurse covered the E grade post.
7. The Employment Tribunal found that initially the Appellant was quite disabled. Although right handed the injury to her left arm meant that she could not lift anything significant with that arm. She could not do the hoovering at home or carry heavy bags of washing. She suffered disturbed nights and had poor concentration by day. Her husband took over the household tasks.
8. The Appellant was seen on a number of occasions by the Respondent's Occupational Health Physician, Dr Glenn. After seeing her in July 1997 Dr Glenn wrote to Mrs Battley, the then Operations Manager, stating that the Appellant was "seriously incapacitated because of shoulder pain". He could not say when she would be fit for work.
9. Following an examination on 27 November 1997 Dr Glenn wrote to Mrs Battley, noting a substantial improvement in the Appellant.
10. By 8 January 1998, when Dr Glenn next saw the Appellant, she had suffered a relapse. Dr Glenn suggested that she may be able to return to work on non-lifting duties before she was 100% fit. He did not know whether she would continue to suffer symptoms at such a level for 12 months so as to become a disable person under section 1 of the Disability Discrimination Act 1995.
11. By early 1998 Mr Connett, who had taken over from Mrs Battley whilst she was on maternity leave, was concerned as to the staffing implications on the Appellant's ward due to her extended absence. He wanted the position finalised, if possible by 1 March 1998.
12. On 4 February 1998 a meeting took place between the Appellant and her representative and members of the Respondent's Human Resources staff. On that occasion the Appellant told 13 Mr Connett that she was considerably improved. Her elbow pains had gone and shoulder movement had improved. However, she was under going physiotherapy which caused her neck pain and she had been prescribed a collar, particularly to sleep at night. She said that she was unfit for work.
13. 4 possibilities options were canvassed. Returning to work on her ward; returning to suitable alternative employment; ill health retirement or dismissal on the grounds of ill health. Mr Connett set a date, 1 March 1998, by which a resolution needed to be reached. The Appellant was upset by what she regarded as indecent haste on the part of her employer.
14. Alternative posts at grades D and E were mooted, but in the absence of a commitment by the Respondent to protect her salary level the Appellant did not pursue those possibilities.
15. On 5 February, she attended for a further examination by Dr Glenn, and she told him that she was going to be seen by a consultant for a specialist assessment of her condition. As a result of what he had been told by the Appellant, Dr Glenn wrote to Andrea Morley, the Respondent's Human Resources Officer, saying that the Appellant was not fit for her present post, nor did he expect her to be fit for any work before 1 March 1998. He added that she was going to see a consultant rheumatologist on 8 April 1998 and that he would be unable to advise on her long-term prognosis until she had had that appointment and he had obtained information from the consultant.
16. Mr Connett was disturbed to learn that the Appellant was to see a specialist, she not having told him of that fact at the meeting on 4 February 1998. He felt that she was concealing information which might be useful to the Respondent in the decision which it had to make. It then turned out that the Appellant was to see not a Consultant Rheumatologist, but an Orthopaedic Consultant and that she was to see him not for diagnosis and treatment but in connection with a potential personal injury action against the Respondent. On learning of this Dr Glenn, wrote to Mr Connett, saying that the Personal Injury Consultant would not give him information but was more likely to seek information from him and concluded that letter, which was dated 19 February.

"I have discussed this matter with my consultant, Dr D'Auria. We are not able to give you a prognosis nor to advise you when Ms Simon might be fit to return to work. However, it seems likely that her disability will last for more than 1 year and it is therefore likely that her condition would fall within the provisions of the Disability Discrimination Act."

17. A further meeting took place on 3 March. It was clear that Mr Connett was influenced by the budgetary problems and additional expenses which the Appellant's absence caused on her ward. It was common ground that the Appellant was not fit to return to work as an F grade nurse on her ward. Both parties accepted Dr Glenn's advice. She was not fit to return to work in any capacity. Even had she been fit the Appellant still expressed herself unwilling to consider a lower grade post until the question pay protection was resolved. Ill health retirement was not an option because Dr Glenn did not have the information necessary to authorise it. Following that meeting and by letter dated 6 March the Appellant was notified of her dismissal on grounds of ill health.
18. Against that decision she appealed. Before her appeal was heard on 21 May, she saw a Consultant Orthopaedic surgeon, Mr Nathan on 7 May and he reported on the 8 May. That consultation was for the purposes of a potential personal injury claim. In that report, Mr Nathan included a diagnosis that the Appellant was suffering from shoulder strain, but that she was fit for light duties. Before the Employment Tribunal the Respondent was prepared to accept the opinion of Mr Nathan. The Appellant did not receive a copy of that report until August 1998, however she made no mention of having seen Mr Nathan. At her appeal hearing on 21 May, the Employment Tribunal found, she kept silent about that fact because she was angry with the Respondent.
19. The appeal took the form of a review, the Employment Tribunal accepted evidence given on behalf of the Respondent, that had further medical evidence been forthcoming from the Appellant the appeal panel would have taken it into account. It was not. The upshot was that the appeal was dismissed by letter dated 26 May 1998.
20. The Employment Tribunal records that between October 1997 – February 1998 the DSS assessed the applicant as being 14% disabled. For the 6 month period from February 1998 that assessment dropped to 7%. At the time of her dismissal she was paid 7 weeks notice money and 7 weeks accrued holiday pay.
21. Based on those findings of fact the Employment Tribunal reached the following conclusions

(1) That the Appellant was not disabled within the meaning of the Disability Discrimination Act, either at the date of dismissal or when her internal appeal was heard and determined.

In reaching that conclusion they considered the relevant provisions of the Act, in particular section 1, which provides:

(1) "Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry our normal day-to-day activities.

(2) In this Act 'disabled person' means a person who has a disability."

Schedule 1, which defines the effect of impairment as long term if it has lasted for at least 12 months or the period for which it lasts is likely to be at least 12 months.

Further they consider the Code of Practice and Guidance issued by the Secretary of State. Reference was also made to the judgment of Morison J in Goodwin –v- The Patent Office [1999] IRLR 4 on the meaning of disability under section 1.

Applying the law to the facts as found they concluded that the substantial adverse effect of the Appellant's physical impairment on her ability to carry out normal day-to-day activities lasted from the end of June 1997 until the end of February 1998. However that effect abated so that by the beginning of May 1998, at the latest the effect was only minor. In these circumstance the physical impairment was not long term within the meaning of section 1 of the Act. She was not likely to suffer a relapse. Consequently she was not disabled and her claim under the Act failed for that reason.

They then went on to make alternative findings on that claim if they were wrong to conclude that she was not disabled.

(2) that the reason for dismissal related to the Appellant's capability. At the time of dismissal, which we take to be the effective date of termination the 28 May 1998, the Respondent had a reasonable belief based on a reasonable investigation that the Appellant was incapacitated.

As to reasonableness under section 98(4) of the Employment Rights Act 1996, the Respondent took proper steps to obtain medical advice from Dr Glenn, a competent Medical Practitioner and acted upon that advice. The Employment Tribunal rejected an argument that the Respondent ought to have gone further and approached the Appellant's General Practitioner or obtain the opinion of an independent consultant. In these circumstances the Employment Tribunal found the dismissal to be fair

(3) that there was to be implied a term of the contract of employment that sick pay would only cease on dismissal if the dismissal was for a reason other than the incapacity in respect of which the employee was then receiving sick pay. The Respondent was in breach of that term by dismissing the Appellant before the end of her sick pay entitlement and consequently the Respondent was ordered to pay the balance of that entitlement.

However, the Employment Tribunal rejected an argument that the fact of that breach of contract necessarily rendered the dismissal unfair (reasons paragraph 10(ii)(c)).

22. At a preliminary hearing held in this appeal on 16 July 1999 Judge Wilson formulated 3 questions for consideration at this full inter partes hearing in this way:

(1) "Whether the Employment Tribunal misdirected itself in finding that the Appellant did not fall within the provisions of the Disability Discrimination Act because, at the time of dismissal, which was within the 12 month period, she was without question, seriously disabled, and whether in fact, because that decision was taken at that time, the Employment Tribunal fell into error.

(2) Whether it was unreasonable for the Respondent Trust to proceed to a dismissal on grounds of ill health without the benefit of a consultant's view of duration and prognosis.

(3) Finally, whether the interpretation of the limits of the contractual right to sick pay, as expressed in paragraph 10(ii)(c) of the Decision, is correct."

23. We shall deal with each point in turn.

(1) Mr Kingsley submits that at the time notice of dismissal was given, 6 March 1998, the medical evidence plainly showed that the Appellant was disabled within the meaning of the Act. It seems to us that the difficulty with that submission is that the act of discrimination complained of, dismissal, took place on 28 May 1998. By that date, on the Employment Tribunal's findings of fact by which Mr Kingsley accepts he and this Tribunal are bound, the Appellant was not disabled. She no longer suffered from substantial impairment nor had she done so for 12 months; nor was she likely to suffer impairment for at least 12 months. Thus it was not long-term. She was not disabled for the purposes of the Act.

(2) The complaint here is that the Employment Tribunal was wrong in law, on the particular facts of this case, to hold that the Respondent acted reasonably in dismissing the Appellant without obtaining a consultant's report. Mr Kingsley relies on the fact that this Respondent had easy access to such medical experts.

We reject that submission. It seems to us that the Employment Tribunal was entitled to find that the Respondent could reasonably rely on the opinion of Dr Glenn. We do not understand the Employment Tribunal to have found that Dr Glenn was not prepared to give his opinion until after the Appellant had been seen by a Consultant. There had been a misunderstanding. Dr Glenn thought the Appellant was going to see a consultant rheumatologist in which case he would have waited for that consultant's report. However, she was in fact going to see a Consultant Orthopaedic Surgeon for the purposes of a report being prepared for her potential personal injury action against the Respondent. That was a different matter.

In our judgment the Employment Tribunal did not fall into error in their view as to the degree of medical expertise invoked by the Respondent. Further, it did not assist the Appellant's cause that she declined to disclose Mr Nathan's report to the appeal panel, so far as her dismissal was concerned.

(3) The final point identified by Judge Wilson is and remains opaque. Mr Kingsley submits that had the Respondent not dismissed the Appellant before the expiry of her sick pay entitlement the outcome may have been different or it may then have been clear that the dismissal was unfair. That is speculation. The question when determining the fairness of the dismissal is whether the Respondent had acted reasonably in dismissing the Appellant for incapacity on 28 May 1998. The Employment Tribunal found that they did. The question of sick pay entitlement as such seems to us to be immaterial to that question.

24. In these circumstances we have concluded that no error of law is made out in this appeal and consequently it must be dismissed.