United Kingdom Employment Appeal Tribunal

APPEARANCES

EAT/392/01

 

For the Appellant Mrs Wroe And EAT/41/01 & EAT/391/01 For the Respondent Mrs Wroe	MR JASON COPPEL (of Counsel) Instructed By: Disability Rights Commission 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ
EAT/41/01 & EAT/391/01 For the Appellant Bradford & Northern Housing Association Ltd EAT/392/01 For the Respondent Bradford & Northern Housing Association Ltd	MR CHRIS QUINN (of Counsel) Instructed By: Messrs Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL


 


JUDGE WILKIE QC:

1. This is the hearing of a number of appeals arising out of hearings of the Employment Tribunal at Leeds on the merits between 16 and 19 October 2000 and on the remedies on 25 January 2001.
2. The respondent to the application, Bradford and Northern Housing Association Ltd, have appealed against the unanimous decision of the Employment Tribunal that they unfairly dismissed and, by dismissing her, discriminated on the grounds of disability against Mrs Wroe. In addition the respondent below appealed against the award of £20,800 odd as compensation for unfair and discriminatory dismissals and Mrs Wroe advanced a cross appeal against one aspect of the compensatory award which, she said, was insufficient.
3. Both appeal and cross appeal on the remedies have, by agreement between the parties in the course of today's hearing, been withdrawn and so we are only concerned with the appeal of the Housing Association on the merits.
4. The tribunal had concluded that Mrs Wroe did have a disability and there is no appeal in respect of that finding. The disability was in the form of tennis elbow. She commenced her employment with the appellant as administration and supplies officer on 14 October 1996. She first went to her GP on 10 July 1998 concerning pains in her elbow, at which point the diagnosis of tennis elbow was made, and a hydrocortisone injection was prescribed. Thereafter, the condition remained, notwithstanding various forms of treatment and it apparently deteriorated to the point at which, by the autumn of 1999, the question of an operation, which, in the context of this condition, is a drastic course, was being considered. Certain elements of Mrs Wroe's job involved physical movements which resulted in pain from her condition. She complained of alleged disability discrimination during the course of her employment by the respondent failing to make reasonable adjustments or failing to take reasonable steps to remove from her duties, which would hinder her recovery or aggravate the condition. Those complaints were dismissed by the tribunal and there is no appeal by Mrs Wroe against that.
5. The focus of this appeal has been the decision to dismiss Mrs Wroe and whether or not the tribunal erred, or was perverse, in its conclusion that the dismissal was unfair and constituted discrimination under the Disability Discrimination Act 1995. One of the incidents of some significance in the lead up to her dismissal by letter dated 11 October 1999 was a meeting held on 21 September 1999. Dr Campbell had examined her approximately a year before on 12 October 1998. Shortly prior to the meeting in September 1999, the respondent sought a further report from Dr Campbell as to their course of action.
6. On 15 September 1999, Dr Campbell had written to the effect that it would be prudent to redeploy Mrs Wroe rather than to allow her to return to the perceived cause of her condition. He referred to the fact that surgery was being contemplated and he stated that this is only contemplated when the disability is severe and resistant to conventional treatment. He was sure that Mr Ravindran, Mrs Wroe's consultant, would not contemplate this unless it was absolutely necessary. He stated that if she did undergo surgery it was likely that she would be unable to work for 6 to 8 weeks thereafter.
7. At the meeting of 21 September 1999 the respondent's note records Mrs Wroe as saying that, if she did have the operation she would be in plaster for approximately 6 weeks, would have 6 months' immobility and that it would be 12 months before it was known whether the operation was successful. Following upon that meeting the respondent wrote to Dr Campbell again seeking his further advice. They reported to Dr Campbell that her operation was scheduled for the last week in November 1999. They referred to his letter of 15 September, which indicated that she would be unable to work for 6 to 8 weeks after surgery, but reported to him that the information they had was that Mr Ravindran had advised Mrs Wroe that she would have limited mobility in her right arm for a further 4 to 6 months and that it would be 12 months before it was known whether the operation had been successful. They were concerned that her ability to undertake any kind of meaningful work from late November 1999 until the second half of 2000 would be seriously impaired by her operation. In the circumstances, redeploying Mrs Wroe to other work would be virtually impossible because of the length of her future absence and her restricted capabilities for a lengthy period thereafter. They therefore sought Dr Campbell's comment on that situation, as well as on her ability to undertake key-board operation. Against that background they informed him that they might now have to consider seriously whether Mrs Wroe's services should be terminated on capability grounds.
8. On 6 October Dr Campbell responded to that request for further advice and he confirmed that in his opinion key-board work would almost certainly exacerbate her symptoms and that redeployment would be very difficult in view of the persistence and severity of her symptoms. As far as the surgery was concerned, although he acknowledged that it was 12 months since he had seen Mrs Wroe, it was his understanding that she was now awaiting an operation. He stated that the prognosis for this, ie the operation, was very difficult but he went on to say:

"I would certainly expect her to have an excellent result in terms of relieving her symptoms but it would certainly be unwise for her to resume her former duties."

Following receipt of that letter, the respondent dismissed Mrs Wroe on 11 October on grounds of her want of capability.

9. At the hearing before the tribunal there had been a dispute between Mrs Wroe and the respondent's witnesses whether she had, or had not, said to them in the meeting of 21 September 1999 that she would be in plaster for 6 weeks, would have 6 months' immobility and it would be 12 months before it was known whether the operation was successful.
10. Although they were invited by Mr Quinn, who acted for the respondent before the tribunal, to make specific findings that she was telling lies with a view to undermining her credibility generally as a witness, they declined to make any finding, of lying or that her general credibility was undermined. They approached it by saying that, although they were satisfied that she might have said some things which she subsequently denied, she was relying on memory. They canvassed the possibility that some things might have been misunderstood by the respondent's witnesses and, in those circumstances, they were unwilling to conclude that Mrs Wroe's credibility was undermined as a result of the discrepancies in the evidence about that meeting.
11. However, it seems to be clear that the tribunal did make a finding that she had stated to the respondent the things which the applicant had been saying and about which they took advice from Dr Campbell. The nub of their decision is contained in paragraphs 80 and 81 of the Decision. At paragraphs 65 to 70, they rehearsed what they directed themselves should be the approach in considering the issue of unfair dismissal where the dismissal was on the grounds of want of capability. They referred to the relevant sections of the Employment Rights Act 1996; they referred to the basic tests and the cases from which those tests are derived, namely Spencer v Paragon Wallpapers Ltd [1976] IRLR 373 and East Lindsay District Council v Daubny [1977] IRLR 181.
12. In paragraph 68, they reminded themselves that:

"The tribunal has to consider the reasonableness of the employer's conduct but must not substitute its decision for that of the employer. The function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of the case, the decision to dismiss fell within the band of reasonable responses, which a reasonable employer might have adopted."

As a statement of the appropriate approach, when dealing with unfair dismissal cases, that cannot be faulted.

13. In the case of disability discrimination, at paragraphs 71 to 79, they set out both the relevant statutory provisions, certain of the provisions of the Code of Practice and the then most recent statement of the proper approach on the issue of justification, as enunciated in the case of Heinz Co Ltd v Kenrick [2000] IRLR 145.
14. It has been pointed out to us that, subsequent to that decision, the Court of Appeal in Jones v The Post Office [2001] IRLR 384 has ruled that the approach which the tribunal should take on the issue of justification under the Disability Discrimination Act 1995, whilst not identical to, is similar to, and in many ways parallel to the approach to be taken in determining whether or not an employer for unfair dismissal purposes has acted reasonably or unreasonably, so that, for all practical purposes in this case, the decision on unfair dismissal would, of necessity, be followed by the decision under the Disability Discrimination Act 1995 and, indeed, in paragraph 86 of the tribunal's decision, they have, whilst giving separate consideration to the Disability Discrimination Act 1995, essentially adopted the process of reasoning which informed their decision on unfair dismissal. Although at one stage Mr Quinn took issue with this approach and in addition took issue with whether the tribunal sufficiently had regard to the Code of Practice, he, in our judgment sensibly, abandoned those two grounds of appeal.
15. In paragraph 80 the tribunal stated that they had concluded that the dismissal was unfair essentially because, although the respondent had been patient for over a year, had taken medical advice on her condition and made reasonable adjustments to enable her to carry out part of her duties, they concluded that they had acted too soon in dismissing her. They stated that:

"Had the applicant reached the end of the road so far as treatment was concerned, we may have felt that a reasonable employer could have taken a decision to dismiss but that was not the case."

16. There then followed a passage in which the tribunal dealt with a submission made by Mr Quinn to the effect that the applicant had not really helped herself, because she had created an over gloomy picture of the post operative medical prognosis essentially in the meeting of 21 September where she had referred to a number of matters other than her statement of the medical advice she was receiving.
17. The tribunal then continued:

"It was submitted that the Respondent was entitled to believe her and was acting reasonably in taking the Applicant at her word. We disagree. A reasonable employer would recognise that the Applicant was not a medical expert and could have misunderstood what she had been told. A reasonable employer would not have placed too much weight on the Applicant's views as to her prognosis. Indeed, the Respondent took advice from Dr Campbell and asked him to comment on what the Applicant had been saying about the post operative prognosis. Dr Campbell told the Respondent that the prognosis was very difficult. He expected the Applicant to have an excellent result in terms of relieving her symptoms, although he felt it unwise for the Applicant to return to her former duties."

18. Three of the grounds of appeal of Mr Quinn centred on the statement that the tribunal disagreed with his submission that the respondent was entitled to believe Mrs Wroe and was acting reasonably in taking her at her word. He says that is a stark error of law and he relies, in support of that, upon certain dicta of the Court of Appeal in Terence Sutherland v Penelope Hatton [2000] EWCA Civ 76, which has been reported since this decision and, in particular, a passage at paragraph 29, in the judgment of Lady Justice Hale, which reads:

"Generally he [the employer] is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisers. Otherwise he would risk unacceptable invasions of his employee's privacy."

19. Had the evidence in this case been that the employer had acted exclusively on what Mrs Wroe was saying and consequently dismissed her, then the stark error of law asserted by Mr Quinn would have been, to some extent, capable of being relied on, although we are far from being persuaded that it would have necessarily constituted an error of law, bearing in mind the principles applicable to unfair dismissals on the grounds of capability which impose an obligation on the employer to inform themselves of the true medical condition, if need be, by taking their own medical advice.
20. However, it is not necessary for us to come to a conclusion on this argument because it is apparent that the respondent in this case did not exclusively act on what Mrs Wroe was saying. On the contrary, they took steps to consult their own medical adviser, by informing him of what the applicant had been saying and seeking his response.
21. It is apparent that the tribunal was of the conclusion that the dismissal decision of the respondent essentially flowed from the opinion proffered by Dr Campbell and it is at this point, in our judgment, the difficulties with this decision start to emerge. Having found as a fact that Dr Campbell had told the respondent that the prognosis was very difficult, that he expected the applicant to have excellent results in terms of relieving her symptoms but felt it unwise for her to return to her former duties, they then immediately went on, in paragraph 81, to state as follows:

"We consider that it was unreasonable for this employer to dismiss when it did. A reasonable employer in the Respondent's position would have waited for a reasonable further period after the operation and would have made a full assessment of the situation in the light of the surgery."

22. It is not clear to us whether, in this very brief statement of their conclusion, the tribunal is, or is not, adhering to its earlier direction to itself not to substitute its judgment for that of the respondent. There are hints that it might be but it is by no means clear that this is so. In particular, Mr Quinn, on behalf of the respondent, argues, in our judgment with a deal of force, that it is very difficult to see how a tribunal might conclude that an employer, faced with the advice with which this employer was faced, could be said to have acted outside the band of responses within which a reasonable employer might react by dismissing Mrs Wroe
23. There is a total lack of any linking reasoning between the tribunal's statement of the facts, as they had found them in paragraph 80, and their bald assertion that the decision to dismiss was unreasonable in paragraph 81. If there had been a statement of reasoning then it might have been possible for us to be able to say definitively one way or the other that the tribunal either did or did not misdirect themselves.
24. One of the purposes of requiring tribunals to give reasons for their decisions is precisely to enable the parties and the Appeal Tribunal to identify any errors of law that there might be. Unfortunately, the reasoning in this part of what is otherwise a very full decision is so exiguous that it is simply impossible for us to say one way or the other.
25. It therefore follows that this tribunal has failed adequately to set out its reasons. This is not, however, one of those cases where the inadequacy is formal only and it would be sensible to send it back to the same tribunal for them to fill out those reasons. Rather the inadequacy goes to the nub of the issue, namely whether this tribunal applied the wrong test, or if it applied the right test, whether its conclusion was so perverse that the only possible outcome would be a substitution by an Appeal Tribunal of the opposite conclusion. We are not in a position to say that it was so perverse because we simply do not have an adequate statement of the reasons to enable us to do so. Therefore, the decision of this tribunal is that the appeal is allowed and the case is remitted to a differently constituted tribunal for a fresh hearing.