United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS KAREN MONAGHAN (of Counsel) Instructed by: Messrs Christian Fisher Solicitors 42 Museum Street Bloomsbury London WC1A 1LY
For the Respondent	MR CLIVE LEWIS (of Counsel) Instructed by: The Solicitor Inland Revenue Somerset House The Strand London WC2R 1LB


 


JUDGE PETER CLARK

1. This is an appeal by Ms Manju Jha, the Applicant before the London (North), now Central, Employment Tribunal against that part of the Tribunal's Decision, promulgated with Extended Reasons on 13 September 1999, which dealt with the question of remedies for what the Tribunal found was the Applicant's unfair dismissal by her former employer, the Respondent Commissioners of Inland Revenue.

Background

2. The Appellant was a long-serving employee of the Respondent, having commenced her employment as a Revenue Executive on 4 November 1974.
3. On 25 July 1994 she began a period of sick leave suffering from depression. Apart from an attempt to return to work on 1 May 1997, which lasted for two half-days, she did no work for the Respondent before her eventual dismissal on ill-health grounds effective on 30 November 1997.

Liability

4. The Tribunal found the dismissal to be unfair due to lack of consultation with the Appellant, in particular during the period May 1997 until notice of dismissal was given on 19 September 1997. The decision to dismiss, taken by the Respondent's Personnel Adviser, Mrs Gomez-Martin, was based on a report from Dr Woolhead of the Occupational Health Service Agency (OHSA) dated 10 September 1997. Unfortunately, Mrs Gomez-Martin erroneously believed that the OHSA doctor had consulted with the Appellant's own General Practitioner prior to writing that report. He had not, but had prepared the report on the basis of the OHSA records. The most recent communication from the Appellant had been a letter dated 19 August 1997, written to Ms Micouris, the Respondent's Welfare Officer, stating that she had not been feeling very well recently and had a further three months sick certificate from her GP.
5. That lack of consultation was not cured by the Respondent's appeal procedure, so the Tribunal found. In the dismissal letter Mrs Gomez-Martin explained to the Appellant that she had a right of internal appeal and that any such appeal, supported by adequate evidence which showed that she would be fit for normal duties within a reasonable time, should be lodged before her employment terminated at the end of November, but that, exceptionally a late appeal lodged within two months of termination would be considered.
6. On 30 October 1997 the Appellant wrote to the Respondent indicating her wish to appeal and asking the Respondent to contact her GP. Correspondence ensued; her GP was on sick leave; the Respondent agreed to keep her appeal open until 16 January 1998; finally, on 4 February 1998 the Appellant's then solicitors wrote to the Respondent enclosing a doctor's certificate dated 30 January 1998 stating that she no longer needed to refrain from work.
7. The process dragged on. On 2 July 1998 the Appellant's solicitors were asked to provide medical evidence in support of her appeal. That letter was followed by reminders dated 15 July and 11 September. Then, on 7 October 1998 the Appellant's solicitors sent a note from her GP simply referring to the opinion of Dr Speirs of Roehampton Priory declaring her fit to undertake employment. That was not sufficient for the Respondent, who asked for a report from a psychiatric specialist.
8. Finally, on 10 May 1999 the Appellant's solicitors sent a report dated 1 May from Pathfinder Mental Health Services NHS Trust, again reporting that she was fit to return to full employment. After all that the Respondent decided that there was no medical reason why the Appellant should not have adhered to the appeals timetable, that the new medical evidence did not show that the Appellant was fit for employment at the termination of her employment in November 1997 and anyway that termination on the grounds of inefficiency or limited efficiency was justified. Thus, by letter dated 28 May 1999, the Respondent indicated that the appeal would not be accepted.
9. The Tribunal found that the Respondent's decision not to entertain the appeal was itself procedurally unfair.

In these circumstances the dismissal was held to be unfair.

Remedies

10. Since this appeal is directed to the question of remedies it is convenient to deal with the issues raised in the following order.

(1) Contribution

The question as to whether the Appellant contributed to her dismissal by her own conduct is potentially relevant to the following heads of remedy:

(a) reinstatement or re-engagement. Employment Rights Act 1996 Section 116(1)(c) and (3)(c);

(b) compensatory award Section 123(6);

(c) basic award. Section 122(2).

The Tribunal found that the Appellant had contributed to her dismissal to a significant extent (Reasons paragraph 23). It is convenient to divide their findings as to contribution into the period prior to dismissal and post dismissal.

11. The contributory conduct pre-dismissal, the Tribunal found, consisted of the Appellant failing to respond to attempts by the Welfare Officer, to contact her until August 1997. This appears to be a reference to visits by the Welfare Officer on 2 and 6 June 1997, when she did not see the Appellant and a subsequent letter which the Appellant subsequently said she had not received and an attempt by the Welfare Officer at telephone contact. The Appellant's letter of 19 August was in response to a letter from the Welfare Officer dated 15 August. Apart from referring to the latest, three months sick certificate, the Appellant explained that she had been unwell and said that all points had been discussed already.
12. Post-termination, the Appellant and her advisers were criticised by the Tribunal for their considerable delays in producing any evidence to assist the appeals process. Such medical evidence as was produced was not sufficient for the purposes of the appeal.
13. On a different point, the Tribunal find, at paragraph 23 of their Reasons:

"The lengthy delay since the dismissal in providing this evidence to the Respondent also contributes to the impracticability of the Respondent now complying with an order for reinstatement."

14. Ms Monaghan, on behalf of the Appellant, attacks the Tribunal's findings that the Appellant contributed to her dismissal by her own conduct or actions in two ways. First, she submits that the Appellant's post termination actions cannot have contributed to the dismissal. That proposition is not challenged by Mr Lewis and we are satisfied, reading paragraphs 23 - 25 of the Reasons that the Tribunal did impermissibly take into the account the Appellant's post-dismissal conduct in reaching their finding of fifty percent contribution to dismissal in paragraph 25. As to the pre-termination conduct of the Appellant, namely her failure to keep in touch with the Welfare Officer from May to August 1997, Ms Monaghan submits that that is not blameworthy conduct. We are inclined to agree, but even if it could be so categorised, can it be said to have caused or contributed to her dismissal? We cannot see that it did. At the date when notice of termination was given on 19 September 1997 the Respondent knew what was the Appellant's position from her letter of 19 August. The reason for dismissal, which was common ground, related to her capability, not conduct. The decision to dismiss was taken on the basis of Dr Woolhead's report dated 10 September, itself based on OHSA records. In these circumstances, not withstanding Mr Lewis's argument to the contrary, we are quite unable to find that any conduct or actions on the part of the Appellant prior to her dismissal either:

(a) caused or contributed to some extent to the dismissal for the purposes of Employment Rights Act 1996 - Sections 116(1)(c), (3)(c) or 123(b) or

(b) was such that it would be just and equitable to reduce the basic award. Section 122(2).

15. In these circumstances we shall allow the appeal against the Tribunal's finding that the Appellant contributed to her dismissal for the above purposes. The effect of our ruling will be explained in relation to the various heads of relief, to which we now turn.

Reinstatement/re-engagement

16. The Tribunal found that neither remedy was practicable and declined to make either order. There is no appeal against the refusal to order reinstatement; the refusal to order re-engagement is challenged by Ms Monaghan.
17. We begin with the Tribunal's reasons for refusing to order re-engagement, by reference to the relevant statutory provisions. Having declined to make a reinstatement order, in considering whether or not to make a re-engagement order the Tribunal must take into account (Section 116(3);) the wishes of the complainant; whether it is practicable for the employer to comply with an order for re-engagement and finally any contribution by the Appellant to her dismissal.
18. The Appellant asked for a re-engagement order as an alternative to reinstatement. The Tribunal declined to make that order because:

(i) she had, in their judgment, contributed to her dismissal to the extent of fifty percent and

(ii) it was not practicable for the Respondent to re-engage her bearing in mind:

(a) she had failed to respond to attempts by the Welfare Officer to contact her between May and August 1997 (paragraph 23);

b) her failure to provide adequate medical evidence and her delay in providing such medical information as she did provide for the purposes of the appeal process (paragraph 23);

19. For all these reasons they held, paragraph 24, that it would not be just to order reinstatement or re-engagement.
20. In challenging that finding Ms Monaghan submits that the Tribunal erroneously, as we have found, took into account their finding that she had contributed to her dismissal to the extent of fifty percent. On that basis alone she argues that the finding of re-engagement cannot stand and that issue ought to be remitted to a fresh Employment Tribunal for re-hearing.
21. Further, she reminds us that the question of practicability involves a two-stage process. This is the first stage; if an order for re-engagement is not complied with, it is open to the employer to re-argue the question of practicability at the further remedy stage under Section 117(4). It is a low hurdle for the Appellant to cross at this first stage.
22. We have carefully considered those submissions but we are persuaded by Mr Lewis to reject them. The error of approach in relation to contribution to dismissal is not, in our judgment, fatal to the Tribunal's conclusion on re-engagement. We accept Mr Lewis's argument that the Tribunal's finding as to the Appellant's lack of co-operation before dismissal and delay in providing medical evidence during the lengthy appeal process after termination were relevant factors in the exercise of their discretion, particularly in relation to the question of practicability at the first stage.
23. Reinstatement or re-engagement is the primary remedy for unfair dismissal, as Ms Monaghan points out, but in practice comparatively few orders are made. This is not a case in which we can say that the Tribunal's conclusion was other than plainly and unarguably right notwithstanding their error as to the question of contribution to the dismissal. Dobie v Burns International [1984] ICR 812.

Compensatory award

24. The Tribunal's principal finding, expressed at paragraph 26 of their reasons, was that, on the balance of probabilities, a fair procedure would have made no difference to the outcome, that is dismissal.
25. As a matter of principle that was a permissible finding, applying the House of Lords guidance in Polkey v A E Dayton Ltd [1988] ICR 142. We do not accept Ms Monaghan's submission that the Tribunal ruled out the possibility of assessing a loss of a chance of the Appellant retaining her employment. That is clear from their alternative finding, to which we shall return, based on a finding not made that there was a chance that she might have retained her employment.
26. Was that principal conclusion perverse? We are not persuaded that it was. It seems to us that it was open to the Tribunal to find that, given the length of her sick absence since July 1994 and earlier over-optimistic prognoses and her failed attempt to return to work, had the Respondent consulted with the Appellant about her possible dismissal in September 1997, and been provided with medical evidence by her, which in the event would have been highly unlikely, judging by her letters of 19 August and 30 October 1997, she would probably have been dismissed in any event.
27. It follows that it is unnecessary for us to consider the Tribunal's alternative finding based on the Appellant's failure to mitigate her loss and contribution to her dismissal. We uphold the Tribunal's finding of a nil compensatory award.

Basic award

28. It follows from our earlier finding as to contribution that the Appellant is entitled to a full basic award of £4,950, the figure agreed by Counsel today.
29. In these circumstances we shall allow the appeal to the extent only that the Appellant is entitled to the full basic award and no other remedy in respect of her unfair dismissal.