United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BELGRAVE (of Counsel) Instructed by: Messrs Simpson Millar Solicitors 101 Borough High Street London Bridge London SE1 1NL


 


HIS HONOUR JUDGE ALTMAN:

1. This is an appeal from the decision of the Employment Tribunal sitting at London North over 4 days in June and October 1999, at the end of which the Employment Tribunal decided that the dismissal was not unfair and that the claim for disability discrimination fell to be dismissed. The Appellant was the applicant before the Employment Tribunal and the matter comes before us by way of preliminary hearing, to determine whether there is an arguable point of law to justify consideration of this appeal in full by the Employment Appeal Tribunal. The dismissal and the associated claim for disability discrimination arose out of the ill health of the Appellant. He has for some time been subject to what is generally abbreviated as being H.I.V Positive but that was kept under control by medication and was not an operative factor in relation to his capability to work at the time of his dismissal.
2. The nature of the incapacity that was relevant was depression; clearly severe depression and the Employment Tribunal made substantial findings of fact about it. They also dealt with a number of matters of complaint, which preceded the dismissal itself but we need not refer to those because they do not form part of this appeal. The Appellant had been absent from work for a considerable period of time, from the 23^rd February 1998 and there was a meeting on 14 July 1998 with the Appellant to review his health situation and possible return to work. At that meeting it was recorded that the Appellant was advised that the Respondents would refer him to Dr Brennan. The Employment Tribunal quoted the file note made by the Respondents at the time as follows:

"He (the Appellant) asked what would happen if Dr Brennan said he won't be fit for work. I told him that we would follow the procedure e.g. consider retraining/redeployment. If these were not possible then his contract would be terminated on ill health grounds."

3. The Employment Tribunal record that thereafter the Appellant made a proposal of return to work part time but this was postponed pending receipt of advice from Dr Brennan, who was asked to advise the Respondents as to 'the likelihood of Roy being fit to return to work in the foreseeable future.' The Appellant's General Practitioner wrote a report for Dr Brennan in which she said that the reasons for the depression were:

'His HIV status and his grave social isolation. In addition, I know that he is unhappy at work and I am sure that this contributes a lot to his depression…I do not really believe that he is yet ready to return to work.'

Then on 3 September Dr Brennan examined Mr Howe and a few days later prepared his report referring in it to the letter he had received from the Appellant's General Practitioner. The way it was expressed by the Employment Tribunal was to say that Dr Brennan shared the General Practitioner's pessimism as regards the Appellant's readiness to return to work and they then quote Dr Brennan's report in full. In that report Dr Brennan said the following:

"My impression was that Roy continues to be angry and mistrustful towards hospital management… He was very evidently emotionally distressed and he blamed management for his distress and depression… it appeared to me, talking to Roy, that management have endeavoured to make a reasonable adjustment to Roy's nursing role in the hospice, with his appointment to the Community Liaison post. Unhappy at the results of this move have compounded rather than resolved earlier concerns in Roy's mind…in conclusion whether or not meeting takes place with management to address the concerns that Roy believes have caused his depression, I share his G.P's misgivings about a successful return to work in the foreseeable future.'

4. Ms Belgrave who has helpfully and fully argued the appeal on behalf of the Appellant and who represented him before the Employment Tribunal says that in cross-examination Dr Brennan agreed that if a meeting had been held to address the concerns that the Appellant believed had caused his depression before the dismissal meeting, that would have been useful possibly in relation to the Appellants employment position. We have of course accepted that that took place before the Employment Tribunal. The Employment Tribunal then records that it was Dr Brennan's view that the Appellant was unfit for any work, including any for which he might be re-deployed and they found that that was the way in which the Respondents would have taken his opinion. The Employment Tribunal then find that before receiving that report, there had been some investigation of alternative posts that the Respondents then waited until Dr Brennan's report and that upon receipt of it, they came to the conclusion that none of the posts would be suitable for the Appellant. No complaint is made before us of any error of law in the Employment Tribunal's accepting the question of consideration of re-deployment in relation to any reasonable adjustments that should have been made.
5. The Employment Tribunal then find that there was a meeting on 7 October at which the Appellant accepted that he was not fit to return to work. They then set out in some detail the way in which that meeting proceeded and they appear to have accepted the evidence of the Respondents, as they were entitled to do, as to how the meeting went. At that meeting the Appellant's sole concentration, as it is described, was on his list of grievances, and the Respondents recorded that most of the time was taken up going through them. That was some opportunity, on the face of it, to do so. After the meeting there is a question of investigating some threats, and references to suicide but then in paragraph 18 the Employment Tribunal say this:

18. "Clare Hornick (on behalf of the Respondents) then wrote to Mr Howe reminding him that she had offered to discuss with him some of the concerns which he had raised at the meeting on 7 October. Ms Hornick repeated her offer to discuss Mr Howe's grievances with her if he thought it would help. On 12 October Ms Ferguson followed that up by suggesting that he could write to the Hospital Director, Christopher Board, setting out his grievances. She also informed Mr Howe that there would be another meeting on 15 October to which Mr Howe could bring a work colleague or representative."

Pausing there for a moment and turning to the grounds of appeal, it is complained by Ms Belgrave that reasonable adjustment in the context of this case would have required consideration of the grievances which were flagged up by Dr Brennan as needing discussion, before a decision to dismiss was taken. In this way, Ms Belgrave submits, if that process had been gone through, and bearing in mind that the nature of the disability was depression, who knows, but that may in itself have qualified the Appellant's disability and affected his then inability to return to work. If part of his illness was due to his feelings of upset about his place of work and if those feelings could be resolved, might not he then have been able to be considered as possibly able to return to work in the foreseeable future?

6. On the face of it the way in which an employer handles a dismissal procedure may arguably give rise to a failure to make reasonable adjustments. In s.6 (2) of the Disability Discrimination Act and even though it does not bear comparison to any of the specific examples listed in that section, there may nonetheless be an argument of failure to make reasonable adjustment. But we find that the paragraph that I have just quoted makes it plain that the Tribunal, directed their minds to, and found as a fact, that the very process which Dr Brennan had suggested did in fact start before the dismissal meeting, and indeed the only thing which appears to have prevented its taking place, was that the Appellant was unable to accept the offer to discuss the matters in the way that was being proposed. It does not seem to us, therefore, that there is an arguable point of law that the Tribunal failed to consider the grievances of the Appellant and that there was a failure to make reasonable adjustments, because there is not the factual substratum necessary upon which to found that argument.
7. The Employment Tribunal then found that there was a meeting on 15 October where the Appellant was told that due to the "unlikiness" of his returning to work his contract was being terminated on ill health grounds. There was then an appeal and during the course of the appeal, consideration was given to the complaints that were made. But the way that was found by the Tribunal was in the following words:

20. "At the appeal Mr Howe reiterated a number of the complaints which he had made about his treatment from various members of staff over the preceding three years and Ms Hornick took a lot of time in listening to and dealing with those complaints. However, the bulk of the appeal dealt with Mr Howe's complaints which really had little or nothing to do with his dismissal which Ms Hornick upheld.

It is complained also that the process of appeal procedure erred in considering grievances as part of the appeal procedure. However, bearing in mind the way in which that developed at the instigation of the Appellant at the appeal hearing, on the finding of fact of the Employment Tribunal, it seems to us that that argument cannot be made.

8. In the decision of the Employment Tribunal, they then set out in some considerable detail the submissions that were made and they then deal, in their conclusions, with a number of matters. A large body of their conclusions deals with the various complaints but they do not form part of the decision of the Employment Tribunal. They then refer to the actual process of investigating ill health and the decision to dismiss. It is argued that the Employment Tribunal made a mistake in confusing the reason for absence on the part of the Appellant and it is said that they appear to have thought it was due to his being HIV Positive, rather than to depression and reference is made to paragraph 29 of the decision in which the Employment Tribunal say:

29. "Finally, we do not accept Miss Belgrave's general contention that the Respondents had to be continuously pro-active in suggesting adjustments. Mr Howe's condition was such that he could, with care and luck, lead a normal life and continue to work as a nurse, unless and until he indicated to the contrary. The hospital reacted promptly to any request that Mr Howe made for an adjustment to his working terms and conditions, which satisfied their obligations under section 6 Disability Discrimination Act 1995."

9. It does seem to us that where the Employment Tribunal are referring to that aspect of his condition, they are not referring to his dismissal or the reasons for it, but rather to the argument that, effectively, once he was fit to return to work he would have been fit for the post he had before. Far from saying that being HIV Positive was the reason in the Tribunal's mind for the absence from work, the Employment Tribunal seem, on the contrary, to be saying that once he was able to return to work there would be no need for him to work elsewhere. It is in the context of his being able to continue at work, it seems to us, and not in the context of his being unable to work, that the Employment Tribunal were referring to his being HIV Positive.
10. There was some discussion also of the way in which the Employment Tribunal approached the question of the dismissal. They categorised Dr Brennan's report as showing that he was:

'Clearly of the opinion that Mr Howe was not fit to return to work in the foreseeable future. The whole tenure of Dr Brennan's letter was pessimistic.'

They then go on to deal with the fact that the meeting of 7 October, reinforcing the employer's understanding of Dr Brennan's advice that there was at that time no prospect of the Appellant's returning to any work, and they make the following finding because there was some delay in taking the decision to dismiss of some 8 months and more. They say:

"Delay as such cannot be an adjustment under section 6 of the Disability Discrimination Act 1995 and we find that there were no steps that the Respondents could have taken to prevent the effect of Mr Howe's disability on his job."

11. It does not seem to us on the evidence that the question of delay formed part of the evidential matter before the Employment Tribunal in relation to reasonable adjustment, although of course it was part of the submissions before the Employment Tribunal and we find that the Employment Tribunal made an assessment which they were entitled to make, in relation to the sort of delay they were talking of under the Act and no point of law arises upon it. In relation to the claim for unfair dismissal, the Employment Tribunal did consider the way in which the procedure was followed. They did express misgivings about the way in which the appeal was conducted and they point out that:

31. "Miss Hornick did allow Mr Howe to have his head and indeed she followed up that appeal meeting with further enquiries of persons involved or accused or having treated Mr Howe unfairly."

They had misgivings about the conduct of the appeal but they took all the factors into account and they said:

31. "While we do not think that that the way in which the appeal was conducted was ideal, any shortcomings were not sufficient to render unfair from a procedural point of view the original decision to dismiss."

12. Accordingly, it does seem to us that the Employment Tribunal did raise and consider in their decision a number of factors referred to in the grounds of appeal. Miss Belgrave refers to a lack of consultation with the Appellant about the best method of proceeding but we do not see the factual basis for that complaint within the decision. We have considered her argument that there was a failure properly to consider redeployment by the Respondents. We have already adverted to the way in which Dr Brennan evidenced unfitness for any kind of work at the time and the Employment Tribunal went into some detail as to the way in which the Respondents approached redeployment.
13. It is then complained that the 3 witness statements were identically worded. This is a regrettable and, sadly, a very frequent feature; witness statements are supposed to be in the words of the witness but those with experience, not only in the Tribunals but in the civil courts and family courts, will know that these are often drafted with meticulous care and legal expertise, so as to become ever more remote from the words of the witness themselves and very often are more akin to pleadings than to real evidence in a case. But that is a procedural fact and it seems to us that it would be exceptional for a Tribunal to draw an adverse inference as to the credibility of a witness, simply from the fact of the formal wording. As to the complaint as to the nature of the appeal, I have already referred to that.
14. Depression is a pernicious disability. It comes from outside, but it appears to affect the person's mind from within, and it can transform in a tragic way the manner in which a person can conduct his life and meet the challenges that life throws up. This is a case in which the Appellant was dismissed for nothing for which he was to blame, or responsible. It was because he was, through no fault or action of his own, unwell. But we have considered all the points of law that have been proposed to us, so fully and helpfully by Miss Belgrave, and we have been driven to the conclusion that there is no arguable error of law on the part of the Employment Tribunal, such as to justify this matter proceeding further. We therefore dismiss the appeal at this stage.