United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G D GOODLAD (Solicitor) Messrs Dennis Faulkner & Alsop Solicitors 6 Cheyne Walk Northampton NN1 5PT
For the Respondent	MISS L CHUDLEIGH (Of Counsel) Instructed by: Amicus Legal Ltd Two St Johns Street Colchester Essex CO2 7AA


 


JUDGE ANSELL

1. This appeal is brought against a decision of an Employment Tribunal held at Bedford in December 2001 pursuant to leave given at a preliminary hearing when the majority reserved decision of the Tribunal was that the Applicant was unfairly dismissed by his employers, today's Appellants. The majority consisted of the lay members, the chairman being in the minority.
2. There had also been an application alleging disability discrimination but that had been withdrawn at an early stage and was not adjudicated upon by the Tribunal. Firstly, a review of the facts as found by the Tribunal. Mr Brooks, the Respondent had been employed by Two Shires Ambulance NHS Trust as an ambulance shift officer. He had suffered physical problems for some time and indeed was pursuing a claim against his employers as he alleged that his injuries had been caused by the lifting of garage doors and indeed the facts record that between the first accident in March 1996 and March 2001 he had been the subject of some thirteen medical reports from six different sources.
3. The particular reports on which the employers relied were three reports from Mr Potts who was the consultant orthopaedic surgeon that Mr Brooks'solicitor had instructed to deal with his accident claim and three letters from Dr Lethbridge who was the Respondent's occupational health adviser written in November and December 1999 and February 2000. Dr Potts' reports were dated March 1998, 7 April and 4 October 1999. We do not propose to read out all those reports. They are set out in detail extensively within the Tribunal's findings, but specifically in April 1999 Mr Potts was saying that it was unlikely that there be any improvement in his symptoms over the next two or three years. The particular complaint was difficulty in movement, particularly in his left shoulder and Mr Potts pointed out that the Respondent's present occupation involved a lot of lifting and handling of patients and it concluded that should he continue with his present level of manual work he would experience a worsening of his symptoms over a number of years. The other reports from Mr Potts were in similar terms.
4. Dr Lethbridge reviewed the matter as we said in three letters and in December 1999 he was saying that "should Anthony continue to be involved in vigorous exertions at this time then his left shoulder symptoms will not improve and more likely to slowly worsen and it would not be sensible for him to continue in his current capacity with Two West Shires Ambulance Trust as this will put him at risk of further shoulder injuries." The final advice was received in February 2000 and it concluded thus:

"We would have to conclude that for (Mr Brooks) to continue in his present capacity would be detrimental to his health and, therefore, suitable alternative employment would be our choice at this time."

5. It was really very much as a result of that final response from Dr Lethbridge that Mr Brooks was invited to a meeting with Ms Mitchie from the Human Resource department and which took place in March 2000 when Mr Brooks was given a list of suitable alternative vacancies. At that meeting he conceded that to continue in front line work was not an option. He made the point that it was not clear in Dr Lethbridge's letter that his condition would not improve.
6. There was a further meeting on 19 April again conducted Ms Mitchie. She had discussed the matter with Ms Bailey Director of Human Resources who had confirmed that "we need to follow the information provided to us by our Occupational Health Provider, we cannot let Mr Brooks continue in his current post as 'detrimental' to his health" and indeed he was dismissed on 19 April to take effect on 12 July although in the letter it recorded that if he was successful in applying for an alternative position of service liaison manager or other roles the notice would be rescinded.
7. One of the issues raised in the case and indeed it was the issue that was very much in forefront of Mr Brooks' application to the Tribunal although has now today played very little part in the proceedings was his request to be considered for employment on a single manned response vehicle (IRV). That was rejected by the Trust on two grounds. Firstly, that they did not have funding for their IRV and secondly that it still required him to undertake on occasions lifting duties with other ambulance personnel, presumably to cover for them and therefore that was not an alternative and the Tribunal in paragraph 26 said they were satisfied that that was the correct position. There is no challenge against that finding.
8. The Tribunal find in paragraph 27 that the Trust reasonably believed (on the basis of the two sets of reports from Mr Potts and Dr Lethbridge) that Mr Brooks was not fit for any front-line paramedic post, including the IRV post. His union representative and possibly his solicitor in June and July raised the possibility of further medical tests and reports. It seems particularly with a view to his ability to take on the IRV role or any other role and indeed Dr Lethbridge was written to and responded on 12 July, the day that the dismissal took effect. He replied stating that it was not in Mr Brooks' interest to continue in his current role and he really was not able to comment on the other positions until he had some further information about the detailed job description and he also said he would need to see Mr Brooks at the time he had been offered such a post.
9. There was an appeal against the dismissal which took the form of a re hearing and in asking for that appeal Mr Brooks repeated his request for further medical examination. The appeal took place on 25 October. All the medical reports were before the appeal hearing. We pause to note as indeed the chairman did in the minority view that Mr Brooks had not availed himself of the opportunity to put any more material in the full appeal hearing notwithstanding that Mr Potts was of course his own specialist. The chairman's notes from the appeal show that the question of any further medical investigation, and whether Mr Brooks' condition was reversible, was raised at the appeal. The panel concluded that no further medical investigation was needed, and that as to the issue of whether the condition was reversible, this was not known at the time. The chairman noted "all jobs require fitness" and they confirmed the decision to dismiss. As it happened there was later on some medical information which showed a different approach. In October 2000 Mr Simon Moyes prepared a report which suggested that there was an 80% chance of a positive recovery with the appropriate conservative treatment programme and indeed much later on in February 2001 a Dr Cheese has reported that Mr Brooks was capable of undertaking the role of Clinical Supervisor or that of an IRV within the Ambulance Service but those matters were of course not before either the employers in April or in July or indeed at the appeal hearing.
10. The Tribunal's decision has caused us some difficulty. The Tribunal were unanimous in finding that it was reasonable for Appellants in April 2000 to rely on the medical reports of Dr Lethbridge and Dr Potts which read as a whole, that his condition was such that it was dangerous for him to continue with his current work as a front-line ambulance crew which means that he could not undertake posts such as the IRV post which would still require him to undertake lifting.
11. However, when one progresses on to the Lay Members' view it seems to us that they are seeking to withdraw from that position. The decision sets out the Lay Members' view as follows:

"The view of the Lay Members that the Respondents were unreasonable in refusing the request for further medical reports. The Lay Members agreed with the Chairman that it was reasonable for the Respondents to rely on the reports from their Occupational Health Consultant, which he had formulated on the basis of the reports from Dr Potts. However, those reports were ambiguous as to the prognosis for the future."

They then refer to Dr Potts' and Dr Lethbridge's statement and they carry on as follows:

"Both of the Lay Members find that although these remarks might be conclusive for the present situation, they do not adequately deal with the future prognosis."

And the Lay Members carry on as follows:

"The Lay Members conclude that the Respondents continued in indecent haste to dismiss Mr Brooks on ill-health grounds, without obtaining the further medical advice that Mr Brooks and his union representatives were suggesting. Both of the Lay Members are agreed that that refusal on the Respondents' part was unreasonable, and render the dismissal unfair."

12. To us it reads that the Lay Members are seeking to adopt a conflicting approach as far as the April situation is concerned. On the one hand they are agreeing with the Chairman that it was reasonable for the Respondents to rely on those reports and yet on the other hand they are saying that those reports were ambiguous as to the prognosis to the future and indeed go on to say that the Respondents have acted in indecent haste by dismissing him. And whilst they refer to the refusal of the requests for further medical reports they are very much basing their conclusions on the actual reports that were in front of the employers in April.
13. The Chairman takes a contrary view. He reminds himself the fact that they found it was reasonable for the Respondents to act as they did in April and goes on to say that it was reasonable for Mrs Bailey and Ms Mitchie (from the employers) to rely upon the medical reports they had already received. They "saw nothing in those reports to require them to seek further medical evidence. Another employer might have taken a different course ….. the Chairman finds no evidence to suggest it was unreasonable for Mrs Bailey to continue to take that stand when the question of further medical evidence was raised." He points out there was nothing to prevent Mr Brooks acquiring his own report and he says that even up to the time of the Tribunal hearing he points out Mr Brooks was still arguing that he was disabled. The Chairman reminded himself of the decision in East Lindsey District Council v Daubney [1977] IRLR 560. In particular it was not the function of the employers or Employment Tribunals "to turn themselves into some sort of Medical Appeal Tribunal to review the opinions and advice received from their medical advisors".
14. What view do we take on all these matters? As far as the law is concerned we remind ourselves that in considering the fairness of the decision to dismiss under Section 98 of the Employment Rights Act 1996:

"The determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

That subsection has been interpreted by numerous court decisions to mean that there is a reasonable range of responses which an employer can take in those situations and that the Tribunal and indeed this Court should be loath to interfere with a decision taken by employers provided it was within that reasonable range of responses.

15. What response should there be by employers to deal with employees' medical conditions? First of all we remind ourselves that whilst in this case the decision to dismiss was taken in April it was to come into effect on 12 July, that was the effective date of termination, and indeed in this case there was an appeal hearing which took place in October which took the form of a re hearing. We are satisfied that in judging the issue of reasonableness we must judge that at the effective date of termination and therefore whilst the employers in this case took the decision in April it is right that they have to monitor that decision and take into account any proper change of circumstances of which they are aware up to the date of 12 July.
16. That is clear from an unreported decision of Portals Ltd v Gates, (202/80) decision of this Court given on 19 December 1980. In that case there was a very long notice given on the grounds of ill-health on 19 December 1978 to expire on 1 October 1979 during which time the employee's health did in fact improve. The relevant passage can be found on page 6, letter C of the transcript where Mr Justice May said this:

"In our view, quite clearly, if one reads subsection (3), events which occur between the date of notice and expiry of the notice not only can but must be taken into account by an industrial tribunal, which is enjoined by virtue of the statutory provision to see whether the employer can satisfy it that in all the circumstances – the word "all" is not in the subsection but clearly is implicit in it – that in the circumstances having regard to equity and the substantial merits of the case, he acted reasonably in treating it as a sufficient reason for dismissing the employee."

17. That is clear guidance that it is the date of termination which is the date that employers actions are judged therefore if they have taken an earlier decision to dismiss we are of the view that any important change of circumstances in the health of the employee is something that they have to take into account during that intervening period.
18. There has been interesting argument raised in this case as to what duty there is on the employer where there is an appeal hearing as there was in this case. The date of termination was not postponed or suspended. There was simply an appeal by the employee exercising his rights for the employer to review the decision and in this case it was a complete re hearing. We see no obligation on the part of the employer to further investigate the matter once the date of termination has passed unless there is substantial new material put in front of them by the employee relating to his condition. In this case had Mr Brooks chosen to present to the appeal hearing a fresh report which threw new light on his medical condition then quite clearly within their review the appeal hearing would have had to have taken that piece of evidence into account in coming to their decision. We do not agree that if there is an appeal hearing, there is any particular duty on the employer to carry out any further investigations after the date of termination in the absence of new facts or circumstances being presented to them.
19. What investigations should be carried out in a medical case? In East Lindsey District Council v Daubney the headnote reads:

"dismissing the appeal, (1) that, although it was not the function of employers or of industrial tribunals to act as a medical appeal tribunal to review advice received from medical advisers, the decision whether or not to dismiss an employee was not a medical question but had to be taken by employers in the light of available medical advice which should be requested in such a way as to enable them to make an informed decision; that a report merely stating that an employee was unfit to carry out his duties and should be retired on the ground of permanent ill health was verging on the inadequate but, in the circumstances, the report would have been sufficient to have enabled the employers to act on it after they had discussed the situation with the employee. Secondly that except in exceptional circumstances employer should take such step as was sensible in the circumstances to consult the employee to inform themselves the true medical position for dismissing him on the ground of ill-health and since the employee was not consulted the dismissal was unfair."

And looking to the judgment given by Phillips J on page 572 letter A he said as follows:

"But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion."

20. We are quite satisfied as indeed the Tribunal were that as at April the employers in this case had indeed acted in accordance with the Daubney principles. They had obtained six medical reports and were relying on them which all spoke with one voice and they had indeed discussed the situation on several occasions with the employee and indeed his representative. For our part we have difficulty with the stance taken by the Lay Members.
21. Counsel for the Respondent before us has sought to put a gloss on their approach to say that what they effectively were doing were saying that as between April and July there were change of circumstances which entitled the employee to say to the employer that they should have a fresh look at his medical position. That is not how he read the Lay Members' view which is clearly based on the absence of prognosis in the Potts' and Leybridge's reports on the one hand but on the other hand says that they are satisfied that it was reasonable for the employers to act on those reports. For our part we find the Lay Members' position to be not consistant and indeed perverse on this point.
22. Accepting Counsel's argument was there indeed any fresh material that should have caused the employers to take a fresh look at the situation as at 12 July? This matter was firmly dealt with by the chairman in his minority view that it was reasonable for the employers to continue to rely on the medical reports. Mere requests by the employees representatives for yet more reports does not seem to us to amount to a change of circumstance which should cause the employer to have to take a fresh look at the situation against the background where he already had six reports all pointing in the same direction about the employee. It is alleged today that Mr Brooks was suggesting that his condition had improved. There is no finding in the Tribunal's decision that at the time he was advancing a change of circumstance. The other change to circumstance was that apparently in August he had been refused a pension based on the grounds that he was not permanently unfit for that employment. We have seen no documents about the matter. Certainly that issue could not have been in front of the employers in July. The decision had not been taken and as far as the appeal hearing was concerned we have already referred to the passage where the appeal hearing fully reviewed the situation and concluded that no further medical investigation was needed.
23. We are quite satisfied that the employers, as was found by the Chairman, acted at all times in compliance with the Daubney's guidelines and acted within the range of reasonable responses to the information that had been provided to them and we repeat that at no time did Mr Brooks put forward a further medical report to suggest that the previous information which had been supplied to the Tribunal should be looked at again or was in any way correct. We find, as we have said already, that the Lay Members' view was perverse and contradictory and that the Chairman's view was indeed the correct one. It has been advanced to us that we should instead of substituting a decision of fairness remit the matter back to the Tribunal because the Chairman did not fully address the circumstances as they were on 12 July concentrating rather more on the events of April. We cannot agree with that contention. We have already made reference to the Chairman's view that it was appropriate for Mrs Bailey and Ms Mitchie to continue to rely upon the medical reports they had already received the clear inference was that as at 12 July there was no further material that has been placed before the employers and thus they were entitled still to continue to rely on the reports from Mr Potts and Dr Lethbridge. We are quite satisfied that the Chairman indeed had in mind the obligation to continue to review matters up to the date of termination and we see no reason to send this matter back to a Tribunal for a rehearing. We therefore allow the appeal and substitute a decision that the dismissal was fair in all the circumstances.