United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H PELHAM (of Counsel) Instructed By: Messrs Lauristons Solicitors 84 Borough Road Middlesborough TS1 2PF
For the Respondent	MR D OUDKERK (of Counsel) EEF Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Dennis Hambley, the Applicant before the Newcastle-upon-Tyne Employment Tribunal sitting on 17 August 2000, against that Tribunal's decision promulgated with extended reasons on 13 September dismissing his complaint of unfair dismissal brought against his former employer, the Respondent, Texon UK Ltd. A further claim of disability discrimination was dismissed on withdrawal.

The Facts

2. The Appellant commenced his employment with the Respondent textile manufacturers as a production operator in February 1987. On 26 October 1998 he sustained injury as a result of his work, that was a flexion strain to the right elbow with soft tissue injury. On 17 November, he having been off work, returned to light duties. That proved too much and he went off work again on 23 November, returning on 8 December. Following an oral warning concerning his absence record given on 18 December, he remained at work until the 22 March 1999, operating the sueding machine with assistance from other operatives.
3. He had by then consulted solicitors with a view to pursuing a claim for damages for personal injury. Those solicitors arranged for him to be seen by his own general practitioner, Dr Robertson, with a view to obtaining a medical report. That report, dated 1 March, was forwarded to the solicitors. Dr Robertson there recommended a course of further physiotherapy during a 4 – 6 week period off work. The Appellant followed that advice, being off work from 22 March until 5 May 1999. The Respondent then instructed a local general practitioner, Dr Dallara to provide them with occupational health advice. He visited the factory on 6 May and watched the Appellant at work on the sueding machine. He was alarmed by what he saw. The Appellant dropped an iron bar on which he was working. He was struggling, hardly using his injured right arm. Dr Dallara spoke to Mr Wheeler, the production manager, who in turn suggested to the Appellant that he be moved to still lighter duties on the day shift. The Appellant declined and again went off sick, returning on 10 June.
4. On 14 June he was seen by Mr Bowler, the shift supervisor. By then the Respondent had been without the Appellant's full services for some 8 months; when he was at work others had to cover for him which was affecting morale in the department. Mr Bowler emphasised the need for the Appellant to return to full time duties. He was not understandably prepared to do work which caused him pain. Again he went off sick, not returning until 6 September.
5. In July 1999, the Respondent obtained a medical report from Mr Stothard, Consultant Orthopaedic Surgeon specialising in upper limb disorders. He described the soft tissue injury and its effects, including pain on strong gripping or heavy lifting, with a significant reduction in grip strength in the right hand. That doctor suggested that the Appellant build up strength in his grip by exercises, the grip then being too weak to safely allow him back to work involving heavy lifting. The Appellant appreciated that he was in danger of losing his job, which involved regular lifting.
6. Mr Bowler then assigned him to the needle board department, with others doing the heavy lifting work. He lasted for 10 days and then went off sick again, following a cut to his finger, never to return before 1 October, when he was called in by Mr Wheeler who dismissed him. At that meeting the Appellant expressed doubts about his ability to do lifting work.

The Tribunal Decision

7. The Tribunal found that the respondent's reason for dismissal related to the Appellant's capability, a potentially fair reason for dismissal. As to the question of reasonableness under section 98(4) of the Employment Rights Act 1996, the Tribunal appear to have directed themselves in accordance with the guidance given by Mr Justice Phillips in East Lindsey District Council v. Daubney [1977] ICR 566. Material to this appeal is the obligation on the employer, save in exceptional circumstances, to consult with the employee who is suffering ill health and to inform itself of the true medical position before taking any decision to dismiss the employee.
8. In this case the Tribunal expressed concern that although there were a number of discussions with the Appellant, there was no discussion enabling the Appellant to contribute by way of consultation to the ultimate dismissal decision. However, they went on to express their conclusion on this aspect of the case at paragraph 14 of their reasons thus:

"By 1 October that decision was already in place. In some situations that failing (of consultation) would certainly persuade this Tribunal to declare such a dismissal to be unfair. In the circumstances of this case, however, we are just satisfied that no significant unfairness arose as a consequence of that failure. The applicant did know that his job was at risk. He did know what the medical position was and what information the respondents had. He must have known the problems that were being caused in this department. In those circumstances such a consultation meeting would have been an empty exercise for the Respondent to have pursued. If we are wrong about that we would at event say that there was going to be nothing that the applicant could have usefully said which would have made any material difference to the outcome. For those reasons we find that the applicant was dismissed by reason of issues relating to his capability and that that dismissal was fair."

The Duty to Consult

9. The observation by Mr Justice Phillips in Daubney that, save in exceptional circumstances, employers should take such steps as were sensible to consult with the employee before dismissing him finds of resonance in the subsequent House of Lords decision in Polkey v. A.E Dayton Services Ltd [1988] ICR 142. In that redundancy case Lord Mackay of Clashfern, Lord Chancellor said (153E):

"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning might be utterly useless he might well act reasonably even if he did not observe the provisions of the Code (that is the ACAS code of practice)"

10. And at page 163B Lord Bridge of Harwich said, having ruled as irrelevant the question of whether a fair procedure would have made no difference to the result;

"It is quite a different matter if the Tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) now section 98(4) may be satisfied."

11. The Court of Appeal has since made clear, in Duffy v. Yeomans and Partners Ltd [1995] ICR1, that this does not mean that the employer must take a conscious decision not to consult with the employee for that reason before the exception spoken of by Lord Bridge can apply. In Mudford v. Midland Bank Plc [1997] ICR 399, again a redundancy case, I considered the so-called Polkey exception as explained in Duffy and said this (404H – 405A):

"It is not necessary for the employer to have thought at the time of dismissal that consultation would be futile, it is enough that a reasonable employer would have reached that conclusion. As to whether a reasonable employer would or would not consult an individual employee is, it seems to us, essentially a question of fact for the industrial jury, properly directing itself."

We are satisfied that that statement of principle applies equally to ill-health dismissal cases.

The Appeal

12. At a preliminary hearing held before a division presided over by Mr Recorder Burke QC on 29 March 2001, this appeal was permitted to proceed to this full hearing on the question of consultation only. Two points were identified for argument at paragraphs 9 -10 of the learned Recorder's judgment thus:

"9. Various grounds of appeal are advanced in the Notice of Appeal in the employee's Skeleton Argument, but all of those have wisely been abandoned by Miss Pelham, who appears today, on behalf of the employee, save for the last two grounds, which go to the consultation issue alone. Putting it in very summary terms, what Miss Pelham submits is that it is only in very exceptional circumstances that the Tribunal can conclude that an absence of any consultation, at the stage to which we have referred, does not render the dismissal unfair.

10. Furthermore, she submits, having regard to what was said in the House of Lords in the very familiar case of Polkey v. A E Dayton Services Ltd [1987] IRLR 503, it was an error of law for the Tribunal to express its own view as to whether or not consultation would have made any difference. It would have been open to the Tribunal to find that the employer had reasonably concluded that consultation would not have made any difference, but in this case, on the findings, it does not appear that the employer ever considered consultation; and in any event, the approach, which might have been a permissible one for the Tribunal, was, arguably, not that which the Tribunal adopted."

13. In advancing the appeal today Miss Pelham tells us that the preliminary hearing judgment, to which we have referred, does not faithfully reflect her argument on consultation. She puts her case in this way:

(1) the Tribunal failed to consider whether or not there were exceptional circumstances in this case.

(2) the Tribunal failed to consider what the reasonable employer would have done so far as consultation was concerned

(3) the Tribunal's finding that consultation would have been an empty exercise was a perverse conclusion, given the four reasons stated for that conclusion in paragraph 14 of their reasons. She submits that consultation was vital in this case.

(4) the Tribunal fell into error by considering whether consultation would have made any difference to the outcome when considering the fairness of the dismissal. See Polkey

14. It seems to us that Mr Oudkerk is right when he submits that whether the appeal is put in the way formulated in the preliminary hearing judgment, or as it is put by Miss Pelham today, no error of law is made out.
15. First, there is no patent misdirection in law on the face of the Tribunal's reasons. They correctly appreciated the appropriate test, to be found in the cases to which we have referred. They asked themselves whether the Respondents failure to consult on the facts of this case rendered the dismissal unfair or whether this was an exceptional case. They found it was the latter because consultation would have been an empty exercise, in accordance with the Polkey approach, itself consistent with the earlier case of Daubney. We are satisfied that they applied the test of the reasonable employer, as demonstrated by their references in paragraphs 11 – 13 to "an employer" and "employers".
16. Their finding that consultation would have made no difference to the outcome was an alternative finding, if they were wrong in their conclusion that consultation would have been an empty exercise. It was not material to that principal permissible finding, itself relevant to the question of fairness, rather than remedy for unfair dismissal, as Polkey explains.
17. Finally, their conclusion cannot in our judgment be characterised as perverse. The object of consultation in ill-health cases is to ensure that the employer can reach a fully –informed decision as to the employee's continued employment. For the reasons given in paragraph 14 of their reasons, the Tribunal concluded that no further information need reasonably be sought from the Appellant by way of consultation. In that sense, consultation at the final stage would have been an empty or futile exercise.

Conclusion

18. For these reasons we must dismiss this appeal.