United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVID GREEN (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Ashford on 8 January 2002 when the application of the Applicant for unfair dismissal was dismissed.
2. We have been enormously indebted to Mr Green who, without fee under the ELAAS Scheme, has argued this case before us on this Preliminary Hearing which is designed to establish if there is one or more arguable point of law capable of argument in full before the Employment Appeal Tribunal. At the outset of his submissions he said that he would wish, if this matter were to proceed, to apply to amend the Notice of Appeal to contain the assertion that the Employment Tribunal failed to consider whether there was sufficient consultation or consideration of reasonable alternative employment. It is true that in the Notice of Appeal in effect there was criticism of the fact that only one partial offer was made when there had been evidence of various other options having been considered.
3. This case before the Tribunal related to the unfortunate situation that occurs from time to time when an able and conscientious employee suffers from an incapacity for which he has no responsibility but which affects his ability to work.
4. The Tribunal made a number of findings of fact in their decision which show that the Applicant began work in 1986 and in due course, in 1995 became the manager of the Respondents' Sunbury Lodge, which is one, we are told, of some fourteen homes owned or operated by the Respondents. These are residential homes for the elderly and as the manager there was responsibility for supervising staff but also direct care for the residents and the work was emotionally and physically demanding.
5. Towards the end of 1996 the Applicant was referred to the Respondents' occupational health physician, Dr Wylie. The diagnosis of chronic fatigue syndrome was made. Dr Wylie advised that the Applicant was unable to work full time and that remained the diagnosis throughout the relevant period. There was a recommendation that a part-time job would be possible in order to give time for rest and the long-term prognosis was uncertain.
6. Further advice was sought from Dr Wylie by the Respondents. The difficulty of prognosis was emphasised. It was felt that the disability was affecting the Applicant's work and "Dr Wylie advised that if the Applicant could work part-time it would be beneficial", but there was no finding that Dr Wylie identified any particular work that, from a medical point of view, the Applicant was fit for.
7. The Applicant was away from work and when examined in April the medical analysis appears to have been the same. Dr Wylie "repeated his view that part-time work would be very suitable for the Applicant if he could be accommodated in that way". The medical advice, therefore, really appears to have left it to management, on the findings of the Tribunal, to consider whether the Applicant could be accommodated in that way. Accordingly, the Tribunal went on to consider that very matter.
8. It appears that the two managers concerned investigated that. They first considered whether it would be possible for the Applicant to perform his duties as the Home Manager on a part-time basis. The conclusion was that that was not possible because the Respondents needed to be able to rely on the Home Manager to be at work full time, particularly during a time of reorganisation, but they concluded that it was appropriate to offer part-time work at the Head Office, on what appears to have been essentially administrative work.
9. A letter was written explaining why it was not appropriate to offer part-time work as a Home Manager and offering the Head Office work. Accordingly, that was considered by the Applicant but the findings of the Tribunal were that he did not wish to work part-time at Head office because of the difficulties with public transport, which would be too taxing on his health; a judgment we are not surprised to hear, having been told that it was a two-hour journey. The Tribunal found that the Applicant said that he wished to work a few hours at Sunbury Lodge "so that he could go home when he became tired".
10. A letter was then written saying that it was not feasible "for the Applicant to work part-time at Sunbury Lodge and go home when he felt tired". The Tribunal then went on to deal with the further contents of that letter, in which there was reference to the travelling difficulties to head office and the Tribunal went on to say that the Respondents' managers were unable to think of any further possibilities for part-time work, although Mr Hodge asked the Applicant if he had any other ideas.
11. The matter then switches in the Tribunal decision to the continuing medical condition of the Applicant, which seems to have been unchanged. The view was repeated by Dr Wylie "that it would help the Applicant if he could work a few hours a day if that would be appropriate". We note the qualified way, throughout, that Dr Wylie appears to have given his advice.
12. That was followed up with the reiteration of the part-time work at head office. It appears, if the Respondents' Notice of Appearance is correct, that in effect that job had been created in order to provide an opportunity for employment.
13. The Tribunal found that the Respondents were concerned and the medical judgment came that there was no prospect of the Applicant returning to work in the foreseeable future or undertaking suitable alternative employment with the Respondents. They concluded that the only options appeared to be retirement, termination or resignation.
14. Dr Wylie then, asked to give a final view, consulted a Dr Ismail, a specialist in chronic fatigue syndrome at Kings College Hospital, who recommended a course of cognitive behavioural therapy for three or four months but with a prognosis that was not good.
15. The Applicant was consulted again. He told the Respondents that he still felt extremely poorly most of the time and was unable to fully participate in daily life. He could not walk very far. He felt tired, experienced severe pain in his joints and was expressing the view that the Respondents should have done more to help him obtain retirement on ill-health grounds. But that of course was a matter for the trustees of the pension scheme.
16. The Tribunal found that the Respondents then came to the conclusion that the Applicant was not going to be fit to return to his job and from that there is essentially no appeal. A need for permanent Home Manager was pressing. The Tribunal found that the Respondents had offered the Applicant alternative part-time work, which he had declined, and that in those circumstances the decision to dismiss was taken.
17. In paragraph 14 the Tribunal set out their conclusions. They found that reasonable enquiries about the Applicant's medical condition, leading to the Respondents being properly informed of the condition and likely prognosis, were made and there is no complaint about that finding. The medical advice showed that the Applicant was unlikely to be fit to return to work in the foreseeable future.
18. They then made the following finding:

14 "Pursuant to the medical advice, the Respondent made reasonable efforts to find part-time employment for the Applicant. We are unable to accept the Applicant's submission that the Respondent acted unreasonably in failing to allow him to return to work part-time as the Home Manager. In our view the Respondent had sound reasons for its conclusion that it was not feasible for the Applicant to work part-time as their Home Manager, given the nature of his duties. The Respondent acted reasonably in offering the Applicant part-time administrative work at its head office. The Respondent waited over a year in order to see if there was any prospect of the Applicant being able to return to work."

19. We have also considered the Summary Reasons, which preceded this, as giving some insight which assists us in interpreting what is being said and considered, in reality, at Tribunal level.
20. In paragraph 4 the finding of fact was that "There was no alternative employment available" at the time of dismissal. In paragraph 6 they said that it was not unreasonable for the Respondent to decide that part-time employment at the home was not a viable option, given the Applicant's ill health.
21. Approaching from the general experience of Tribunals at appeal level, Mr Green understandably submits that there is no evidence alluded to in the Tribunal's decision of the various homes near the Applicant's home, including Sunbury, or any identification of a process of examining the possibility of there being part-time vacancies which the Applicant could have been offered; and that, in effect, the Tribunal are to be criticised in failing to consider whether or not overall the Respondents made reasonable efforts to seek an alternative post for the Applicant.
22. Bearing in mind, Mr Green says, the size and resources of these Respondents, and the type of similar work in various homes that must be available from time to time, in deciding whether or not the Respondents took reasonable steps to investigate the possibility of part-time working, following their medical advice, the Tribunal failed to examine the more extensive sort of process that would have been required. Mr Green submits that there is no indication on the basis of the Tribunal decision that the Respondents did undertake that exercise or that the Tribunal considered it in reaching their decision.
23. When viewed as the text book way an employer should look at ill health retirement, then obviously that sort of process is very often present. But in this case it is quite apparent that the Applicant himself was holding himself out as available for work which would enable him to leave if he felt tired.
24. The Notice of Appearance has made it clear that the Respondents' case was that all personnel within the residential care environment are relied on by their colleagues to attend at a given time and to remain until a given time. Mr Green in argument submitted that consideration should have been given to an Assistant Manager post at Sunbury Lodge, where the Applicant had worked; but of course that sort of post, which may lead to someone being wholly responsible for a home, does require advance notice of availability for work on the part of an employee.
25. The point has been made, that the very work of providing direct care for the elderly in homes of this kind, is very demanding, tiring, stressful and important. The finding of the Tribunal was that the judgment of the employer was that it was not feasible for the Applicant to work part-time at Sunbury Lodge and go home when he felt tired.
26. Before the Tribunal arguments could have been advanced of other steps that could have been argued for as part of the factual basis for matters to be considered, but we have to examine whether or not the Employment Tribunal can reasonably be said to have erred in law in the approach that they took.
27. It seems to us that once there were the clear findings of fact by the Employment Tribunal that the hope for part-time work proposed for investigation by Dr Wyle had implicitly the added need for the Applicant to be able to go home if he felt tired, the Tribunal were entitled to conclude on the facts before them that there was no reasonable alternative available. It is quite clear that there were no differences between the homes within travelling distance for the Applicant, from Sunbury Lodge or elsewhere, that were available for consideration and were not investigated by the Employment Tribunal.
28. The extent to which the findings of fact show that the Applicant still felt extremely poorly most of the time and the substantial practical disabilities that he had, to which we have already referred in this judgment, shows that the capacity for regular hours of work, as opposed to going home when he felt tired, must have been a very real issue for the Tribunal to have considered and this was not simply a marginal element in considering appropriate part-time employment.
29. In those circumstances it seems to us that when examining the extent to which, faced with an employee suffering from ill health, the Respondents took reasonable steps to consult with the employee and to investigate with him and within their own establishments the feasibility of appropriate alternative part-time employment, the Employment Tribunal were entitled to conclude that these Respondents acted reasonably.
30. Other arguments may have been addressed to the Tribunal, and put before them, when one tries to revisit and rebuild what might have been before them. However, in spite of the very helpful and full arguments put forward by Mr Green, we are driven to conclude that there is no arguable error of law in the approach of the Tribunal and accordingly we are driven to dismiss the appeal at this stage.