United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FRANCIS SUTCLIFFE (Solicitor)
For the Respondent	MR MATTHEW SNARR (of Counsel) Instructed by: Messrs Jack Thornley & Partners Solicitors 8 Warrington Street Ashton-under-Lyne Lancashire OL6 6XP

SUMMARY

Unfair Dismissal

Capability dismissal. Employment Tribunal erred in concluding the dismissal was unfair because in its view the Occupational Health Consultant relied on by the Respondent was 'biased'. The issue should be whether the Respondent acted outside the band of responses of the reasonable employer in relying on it, an employer ordinarily being entitled to do so (Liverpool v Edwards [1979] IRLR 471). Remitted to fresh Tribunal.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Respondent Company, First Manchester Ltd, against the unanimous Decision of the Employment Tribunal at Manchester that the Applicant, Mr Kennedy, was unfairly dismissed. The Tribunal reached such Decision after a hearing on two days in April 2004, by Reasons which were sent to the parties on 5 July 2004. The ground of dismissal was incapacity, the situation being that the Applicant was employed, since March 1983 by predecessors of the Respondent Company, by way of continuous employment, as a bus driver.
2. The brief facts were that he was absent from work in 2001, and indeed attended for a medical examination with the Occupational Health Department, and in particular with the Consultant Occupational Physician engaged by the Respondent Company, Dr Farrand, in December 2001, at which it became apparent from what the Applicant then told Dr Farrand that the Applicant had had a heart condition which he had not reported to the Respondent, and, indeed, that in November 2001, he had, during his absence from the Respondent Company, undisclosed to them, had a coronary angioplasty. Dr Farrand was concerned that he had not reported that fact to his employers – namely that he was having coronary problems prior to the operation – and had continued to drive buses (being Group 2 vehicles) which, in anyone's view, clearly raised safety issues.
3. Disciplinary hearings followed, and there was an examination of the Applicant by the Applicant's specialist, a Dr Mushahwar, and a report from Dr Mushahwar in January 2002, to report that the Applicant was "asymptomatic and that there [was] no clinical reason for him not to continue to apply his trade as a bus driver." The Tribunal records, at paragraph 9 of its Decision, that from Dr Mushahwar's letter it appeared that the Applicant had been unfit to work, but that he now was fit, and after a final warning had been registered against the Applicant, he resumed driving as from April 2002.
4. The Tribunal then records that unfortunately, in January 2003, there were further problems. The incident is recorded by reference to 15 January 2003, as follows. The Applicant had reportedly suffered chest pains. A Mr Bainbridge, the Service Manager, had advised the Bolton Depot to call for ambulance assistance and Mr Bainbridge had provided a statement of what had happened. The Applicant's case was that he had eaten something over-quickly and had had trouble with one of the passengers that had got him agitated that day, and that he was having chest pains, and consequently had pulled the bus to one side, and an ambulance had been called. His colleagues said he was sweaty and complaining of chest pains. He attended the hospital but prior to any diagnosis by the hospital he had discharged himself. He explained that he discharged himself because a doctor had said to him that he had not had a heart attack and that it was most likely indigestion. The doctor had advised him to stay in the hospital, but he did not do so. The Tribunal records, in paragraph 13, as follows:

"By not doing so it meant that there was no conclusive proof that he had not had a heart attack, or conversely that he had."

5. Dr Farrand, who carried out a medical examination on 22 January, was of the opinion that the Applicant had suffered an episode of angina or a minor heart attack on 15 January, and was concerned by the Applicant's decision to discharge himself from hospital, and he described the Applicant as being uncooperative. He said the Applicant should not drive until further medical opinion had been obtained and the DVLA informed of the circumstances. It was agreed that the Applicant would be referred to an independent coronary consultant by Dr Farrand.
6. In a meeting on 30 January 2003, Mr Carroll was insisting that he should be certain that the DVLA had been informed about the full position. The Applicant asserted that he believed Dr Farrand had a personal dislike of him, and Mr Carroll defended Dr Farrand, saying he was simply a professional.
7. The documentary history of what happened thereafter is as follows. Dr Farrand referred the Applicant to the Consultant Cardiologist referred to, who was a Dr Silas, by a letter dated
   7 March 2003. In that referral letter, Dr Farrand said as follows:

"Thank you for agreeing to see Mr Kennedy, a bus driver about whom I have considerable concern. He collapsed at the wheel of his bus on 16^th January 2003 with chest pains and shortness of breath, thence being conveyed to Royal BoltonHospital by paramedic ambulance.

As this is the second time that this driver has collapsed at work with similar symptoms and as he has had previous coronary artery stenting, I have considerable concern at allowing him to return to bus driving at all. I have enclosed a copy of my most recent file note in this case, and all other relevant file notes will be forwarded to you, either with this letter or other cover, prior to your review of Mr Kennedy."

We have not seen a copy, before us at any rate, of that most recent file note, and so it is unclear whether in that file note, or indeed in any other file notes, it became apparent as to what Dr Farrand was referring when he said in the letter that it was "the second time that the driver [had] collapsed at work with similar symptoms". There had, of course, been the earlier persistent absence from work in 2001, which had culminated in an angioplasty. But there is no evidence of his having actually collapsed at work. The mystery was not resolved before the Tribunal.

8. The report of Dr Silas, which resulted from that reference, is contained in a letter dated 29 July 2003, by reference to an examination on 13 May. Dr Silas's report reads as follows:

"I saw this man today for an echocardiogram and exercise test. He brought along an ECG performed at Bury General Hospital on 26 03 01 which looked very similar to his current tracings, ie gross LVH with strain including repolarisation changes in 1, AVL, V3-6. If anything, the ECG has improved s1ightly since then but is basically similar. His echo shows


clear evidence of gross hypertrophic cardiomyopathy with typical systolic anterior motion of the mitral valve and an outflow gradient which was difficult to quantify but was somewhere between 30-60 mmHg. I thought there was an associated mitral regurgitant jet which at times overlay the aortic outflow jet. There was no sign of early closure of the aortic valve and left ventricular hypertrophy is fairly concentric. Interventricular septal thickness was 2.8 cm, the posterior wall was 1.8 cm, the apex may be relatively free of problems and the right ventricle is not involved. The left atrium is enlarged at 4.6 cm as one often sees in these cases, but the aortic valve itself contains three cusps and is normal.

It is clear that the EGG findings and the ejection systolic murmur fit well with hypertrophic cardiomyopathy."

As will become clear when we refer later to the DVLA documentation, hypertropic cardiomyopathy is one of the cardiovascular disorders which is specifically addressed as a problem in the schedule of the DVLA's concerns under the heading "Cardiovascular Disorders" in relation to those holding particularly Group 2 licences. He continued:

"There is no family history of the condition.

I proceeded to exercise testing and he managed 9 mins of the Bruce protocol, achieving the maximum permissible heart rate and stopping exercising for that reason. There were no .rhythm disturbances which is a good sign.

Based on his exercise test it seems that Mr Kennedy is after all asymptomatic which puts him in a good prognostic group. His hypertension is very well controlled (baseline BP 110/70 increasing to 170/80 during exercise). The DVLA guidelines are that licensing may be permitted if the patient is asymptomatic, has no family history of sudden death, there are no serious rhythm disturbances and hypotension does not occur during exercise. He meets these four criteria. However an additional criterion is that the hypertrophic cardiomyopathy is anatomically mild. I would not say this was mild but severe hypertrophy associated with increased risk of sudden death is generally associated with a septal dimension of 3 cm or more.

Mr Kennedy tells me he is now on cozaar-co and amlodipine for hypotension. It is not clear whether he is on a cholesterol-lowering drug and I did note a serum cholesterol of 3.9.

I suspect that the DVLA would pass him subject to a 24 hour ECG."

A copy of that letter report was sent to the Applicant.

9. The next thing that occurred was a report by Dr Mushahwar, the Consultant Cardiologist who had seen the Applicant earlier; he wrote to the GP, Dr Walton, (obviously for onward passage both to the Applicant and, no doubt in due course, as intended, to the Respondent) a short report, dated 29 September 2003. Dr Mushahwar does not deal with the 24 hour ECG, which apparently the Applicant had had carried out at the Farifield General Hospital, and which, according to a letter from his GP, Dr Walton, of 13 October 2003, was normal. What he refers to is an echocardiogram, which he had, according to the report of 29 September 2003, just done. He concluded as follows:

"…he has symmetrical concentric left ventricular hypertrophy which may be due to hypertension. I would be grateful if you would keep a close eye on his blood pressure.

I note that he has been seen by another Cardiologist regarding his occupation and a diagnosis of cardiomyopathy (hypertrophic) has been made. This may be a rare form of generalised hypertrophy but there is no focal hypertrophy and there is no clear evidence of obstruction. I have explained to Mr Kennedy that I feel that he should be able to pursue his driving career (he drives a bus)."

and then he referred to the fact that there could an arbitration with another colleague of his.

10. That report was shown to Dr Farrand. Dr Farrand, in the meanwhile, had carried out a risk assessment, pursuant to his professional experience as a Consultant Occupational Physician, of and in relation to the employment of the Applicant, in a letter dated 8 June 2003, taking into account Dr Silas' report, and he wrote as follows:

"I am now in receipt of a formal medical report, from Dr J.H.Silas, consultant cardiologist, following his examination of Mr Kennedy and the echocardiogram and treadmill exercise test, performed on May 13th 2003. Having now assessed the content of that report and given the matter careful consideration, I am now in a position to provide my opinion in this matter. In addition to Dr Silas' report, reference has been made to the following sources in forming this opinion:

The Management of Health and Safety at Work Regulations, 1999.

Cardiology, Editor-in-Chief: Sergio Dalla Volta, McGraw-Hill, 1999.

Medical certificate, A&E department, Royal Bolton hospital [which plainly refers to the incident of 15 January 2003].

Statement of J. Beckett, Service Manager.

Statement of Mr P. Bainbridge, Service Manager.

In his report, Dr Silas records that Mr Kennedy is suffering from a chronic disease process, affecting the heart muscle, with associated outflow obstruction. Dr Silas terms the severity of this condition as being 'gross'. He goes on to record the pathological appearances of the condition on echocardiography, before noting that Mr Kennedy managed 9 minutes of the treadmill exercise test, under the conditions applicable to the Bruce protocol. Dr Silas records that no rhythm disturbances were seen during this test, and notes that this achievement puts Mr Kennedy in 'a good prognostic group'. With respect to whether or not DVLA licensing guidelines permit Mr Kennedy to retain his group II licence, however, Dr Silas points out that, although he fulfils four of the criteria that allow this, he fails to satisfy the fifth criterion that his condition is anatomically mild. These criteria are linked to the possibility of development of sudden, serious cardiac events. He concludes his report by opining that, subject to a satisfactory 24-hour electrocardiograph, he suspects that DVLA drivers' medical section would permit him to retain his group II licence."

He then turns to address matters which of course would be peculiarly within his province as Consultant Occupational Physician, but would not have been addressed by Dr Silas, or by Dr Mushahwar:

"Moving on to the requirements of the Management of Health and Safety at Work Regulations, 1999, regulation 3 requires that 'Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of those not in their employ arising out of or in connection with the conduct by them of their undertaking, for the purpose of identifying the measures they need to take to comply with the requirements and prohibitions imposed on them by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations, 1997.' The duties specified in these regulations are of an absolute nature, qualified by the word 'shall', a higher level of duty than the phrase 'so far as is reasonably practicable', found in other bodies of legislation. In respect of Mr Kennedy's fitness to drive a bus for the company, therefore, I am of the opinion that a risk assessment is mandatory, in respect of the risk to the health and safety of his potential passengers and other road users whose health and safety might be compromised. Risk assessments generally take the form of the consideration of three factors. These are the probability of a risk occurring, the numbers likely to be involved were such a risk to come to pass and the severity of injury should this occur. A commonly used grading scale, to allow quantification of risk, involves grading each factor on a scale of 1 to 3. with 1 being the lowest and 3 being the highest value. The obtained numbers are then multiplied together to give a position in the scale between 1 and 27. The higher the product, the more significant the overall risk."

That explanation is given to Mr Carroll thus, the Employee Development Manager, in his letter, before he then went on to address the position of Mr Kennedy. Mr Carroll was cross-examined about risk analysis, or risk assessment, and he said as follows, in answer to the question "Do you understand risk analysis?", to which the answer was "I'm not qualified in risk assessments"; and then, after addressing some of the detail of the letter, to which we will return, the question, placed no doubt by Counsel, Mr Snarr, for the Applicant (who appeared below as he has appeared before us) "If Applicant is at risk of suffering cardiac problems, were you sufficiently informed?" "Fact Dr Farrand says high risk not reasonable to take. Advice I have to accept…. We employ Dr Farrand to do risk assessments."

11. Dr Farrand continued as follows in that letter:

"Consideration of the cardiac complaints from which Mr Kennedy suffers, or has suffered in the immediate past. identifies that his risk of sudden incapacitating cardiac events is higher than that experienced by the general public, although there are no means by which this elevation of risk can be quantified. A reasonable score for this factor would, therefore, be '2'."

He then turned to the next question:

"The numbers of persons who might be affected were this risk to come to fruition is large, company vehicles carrying up to 60 to 70 passengers, with other road users possibly adding several more potential victims. The ranking for this factor would, therefore, have to be '3', as would the potential outcome of an incident, which might result in the death or serious injury of a number of individuals. The ranking in the risk assessment scale, of allowing Mr Kennedy to resume bus driving is, therefore, 18. This is twice the risk applicable to his peer group who do not suffer from the same or a similar condition. This risk does not appear to be reasonable to take, in view of the potential for harm to others and I am sure that, as a professional driver, Mr Kennedy will appreciate this."

The cross-examination of Mr Carroll, to which I have referred, made it clear that Mr Carroll did not understand how 18 had been arrived at, but there does not appear to have been any cross-examination or submissions by Mr Snarr before the Tribunal that, in fact, 18 was not an appropriate scale to arrive at, or, at any rate, that the mathematics or statistics were in some way wholly flawed. They are simply, it is suggested, not fully explained to the layman. The letter continues as follows:

"In addition to the cardiac problems from which he suffers, Mr Kennedy is also considerably overweight, or was when last we met, and this factor, in itself, can lead to the further deterioration of the cardiac problems from which he suffers. This constitutes an additional risk factor when considering the future health and safety of Mr Kennedy himself. Recent research has also found that obesity, in itself, greatly increases the risk of death and serious injury of those involved in road traffic accidents [and a textbook is cited]. Finally, reference to the witness statements, provided by the two Service Managers who attended the scene when Mr Kennedy was taken ill at the wheel of a company bus, identifies that the history that he gave me, when we met on 22^nd January 2003, was substantially different from the facts that they reported. A certificate, produced by the accident and emergency department at Royal Bolton hospital, and provided to the company by Mr Kennedy subsequent to the events of 16^th January 2003, identifies that, following his transport to that department after collapsing, Mr Kennedy then discharged himself from hospital against medical advice, before investigations could be completed. I have, therefore, additional concerns that Mr Kennedy does not fully disclose all relevant medical information, to allow his medical attendants to make appropriate judgements in his case, particularly when the question of his fitness to drive buses comes into question.

In conclusion, referral to an independent specialist cardiologist has not given Mr Kennedy a 'clean bill of health' and, even to be allowed to drive a group II vehicle again, he requires further assessment. On the basis of a formal risk assessment, however, I find that Mr Kennedy poses a significantly greater risk to the health and safety of both himself and others, than do other members of his peer group who have not the cardiological problems that afflict Mr Kennedy. I do not consider, therefore, that it is appropriate for me to allow Mr Kennedy to return to bus driving duties with this company. Alternative employment that would be appropriate to him would require that no vehicle driving was required, either on or off-road."

He then indicates various suitable jobs which would appear to be appropriate, and says that he would be happy to assess him with those jobs in mind.

12. In the light of the further short report by Dr Mushahwar, to which we have referred, Dr Farrand returned to his assessment in a letter to Mr Draper, the Operations Director of the Respondent, dated 12 November 2003, and that letter read as follows:

"I am in receipt of a copy of the medical report, provided by Dr Mushahwar, consultant cardiologist, Fairfield General hospital, Bury, in respect of the 24-hour [ECG] performed on Mr Kennedy on an unspecified date prior to 4^th October 2003. I have carefully considered the content of Dr Mushahwar's report, and provide the following view in respect of it.

In his short report to Mr Kennedy's general practitioner, Dr Walton, Dr Mushahwar notes that he has recently done an echocardiogram on Mr Kennedy, and that this shows symmetrical thickening of the wall of the main pumping chamber of Mr Kennedy's heart, which may be due to high blood pressure. He advises that the general practitioner keep a close eye on Mr Kennedy's blood pressure.

Dr Mushahwar goes on to note that he has seen no clear evidence of valvular obstruction and that it is his opinion that Mr Kennedy should be able to pursue his driving career. Finally, Dr Mushahwar indicates that, as there is conflict between his own and another consultant's opinion, he would be happy to refer Mr Kennedy to one of his colleagues for a further opinion. He notes that Mr Kennedy declined this offer.

It is of note that, in April 2003, I applied to both Dr Mushahwar and Dr Levy, an interventional cardiologist who had treated Mr Kennedy's previous coronary artery problem, for copies of his previous electrocardiographs and other relevant investigations. This application was made under the Access to Medical Reports Act, 1988, and Mr Kennedy exercised his right to see this information before it was sent to me. Subsequently, no response was received from either specialist, my view being that Mr Kennedy is selective in the information that he allows me to see. I would be interested in his view as to why he failed to enable the release of the documentation to which I have referred, which would have allowed both Dr Silas and myself a better view of his previous cardiological health.

In his letter, Dr Mushahwar has noted that Mr Kennedy has symmetrical thickening of the main pumping chamber of his heart, and then goes on to give the impression that the symmetrical thickening seen is rare in hypertrophic cardiomyopathy, as diagnosed by Dr Silas. However, reference to Braunwald, 'Cardiology', 1999, identifies that 20 to 30% of cases of this condition show a symmetrical distribution of the wall thickening. This can, by no stretch of the imagination, be held to be 'rare' as opined by Dr Mushahwar."

It can be seen, therefore, that after pointing out what he calls the selectivity of the information supplied, by reference to the fact that there is earlier information which has been denied him, he points to a specific error, as he sees it, in Dr Mushahwar's report, by reference to medical reference work. He continues with a second such error, as Dr Farrand saw it:

"Dr Mushahwar goes on to note 'no clear evidence of obstruction'. This does not, however, indicate that there is no obstruction, merely that the echocardiogram that Dr Mushahwar has seen shows no clear evidence of it. This must be contrasted with Dr Silas' view that "His echo shows clear evidence of gross hypertophic cardiomyopathy with typical systolic anterior motion of the mitral valve and an outflow gradient which was difficult to quantify...". This opinion is clear and properly qualified and contains none of the uncertainty present in Dr Mushahwar's report."

13. Dr Farrand then turns to the third respect which he addresses:

"Dr Mushahwar notes that it is his opinion that Mr Kennedy is, in actuality, suffering from symmetrical concentric left ventricular hypertrophy due to hypertension. It is my opinion that he attempts to assure that this is a relatively benign condition that would not interfere with Mr Kennedy's ability to continue to drive buses. However, further reference to Braunwald, 'Cardiology', 1999, identifies that 'Left ventricular hypertrophy was a strong predictor of congestive heart failure in hypertensive patients, as well as sudden cardiac death'. Additionally, 'Electrocardiographically determined left ventricular hypertrophy conferred a three-fold elevated risk of subsequent coronary heart disease, even after correction for the blood pressure level' and 'Patients with echocardiographically determine left ventricular hypertrophy had a five-fold higher cardiovascular event rate compared with those without left ventricular hypertrophy, despite similar blood pressure values'. It is of note that, whilst Dr Mushahwar comments on Mr Kennedy's ability to drive a bus, nowhere does he comment on his safety to do so. Of further note is that Mr Kennedy's general practitioner, Dr Addis, on a medical certificate of unfitness for work that he signed on 23^rd June 2003, certified him as suffering from 'ischaemic heart disease'.

Having diligently considered Dr Mushahwar's opinion, therefore, and having sought support for my opinion from a widely respected authority in the field of cardiology, I am of the opinion that Dr Mushahwar has not lent one iota of credibility to the subject of Mr Kennedy's ability to safely drive company vehicles. He has, in fact, provided a diagnosis that even more strongly refutes Mr Kennedy's ability to safely undertake his duties, the quantification of risk being more clearly expressed here than it had been in relation to hypertrophic cardiomyopathy. However, I continue to hold to the correctness of Dr Silas' opinion, based on the quality of information that he has provided to me, that allows me to reach an appropriate determination. I see no reason, therefore, based on the additional documentation with which I have been supplied to change my previous opinion in Mr Kennedy's case, Dr Mushahwar's opinion, even if correct, buttressing that opinion also. Finally, Braunwald notes, in respect of cardiological assessment in such a case, that 48-hour ECG is required, rather than the 24-hour test to which Dr Mushahwar has referred."

14. It was on the basis of that evidence that the Respondent made and confirmed its decision to dismiss the Applicant from his position as a bus driver, and, so far as alternative employment is concerned, not to consider any alternative employment which would involve driving, such as the job of a shunter. It is, it seems, common ground that the other jobs which the Respondent was offering, none of which involved driving a bus, were not and/or would not have been acceptable to the Applicant; and in the course of argument before us today, both Mr Sutcliffe, solicitor (who appeared below and before us on behalf of the Respondent), and Mr Snarr, of Counsel, agreed that a separate point did not arise in respect of any issue of finding of alternative employment, compared with the main issue of capability, given that the real issue was whether the Respondent was entitled to have formed the view that it was inappropriate for the Applicant to continue to remain in employment driving buses. If that issue was right, then that would resolve the issue of alternative employment as well; and if that was wrong, then, of course, they ought, at the very least, to have offered alternative driving duties, even if they had, in fact, been entitled to dismiss him from his original position as a bus driver.
15. We turn then to the appeal, which is put forward on the basis that the Employment Tribunal, in deciding as it did, and for reasons which we will recite, that there was an unfair dismissal because the Respondent acted outside the range of reasonable responses of a reasonable employer in dismissing the Applicant on capacity grounds, as the Respondent submits, either asked the wrong question, or adopted the wrong approach in law, or substituted its own conclusion for that of the Respondent, impermissibly. There is no issue between the parties that the test is a straightforward statutory one, and section 98(4) of the Employment Rights Act 1996 emphasises that:

"…the determination of the question whether the dismissal is fair or unfair dismissal, having regard to the reasons shown by the employer, depends upon whether, in the circumstances…the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee."

16. That said, in the area of sickness capability, assistance has been given by the courts to an employer, and to an employment tribunal deciding the issue, as to how to address the questions as to whether an employer acted reasonably or unreasonably; and, subject always to the overriding question being whether the Respondent acted reasonably or unreasonably, the Tribunal correctly recites, in paragraph 37, the three areas which a Tribunal must consider in a sickness capability dismissal case:

(i) Was there proper consultation with the employee, including warning of the risk of dismissal?

(ii) Was there proper medical investigation? In every case a fair procedure should be followed.

(iii) Was there consideration, where appropriate, of alternative employment?

17. The two leading cases in this area are East Lindsey District Council v G E Daubney [1977] IRLR 181 and Liverpool Area Health Authority (Teaching) Central & Southern District v Edwards [1979] IRLR 471, both of those cases being decisions of the Employment Appeal Tribunal. The central quotation from Edwards, which really enshrines the basis of the argument before us, is this quotation from the decision of Arnold J, at paragraph 11:

"We do not think that an employer, faced with a medical opinion, unless it is plainly erroneous as to the facts in some way, or plainly contains an indication that no proper examination of any sort has taken place, is required to evaluate it as a layman in terms of medical expertise."

18. In this case, as we have indicated, the Respondent employer used the services of an Occupational Health Physician, and relied upon that report. It is plain that the Tribunal recognises, in terms, as was the case, that the Respondent employer did indeed rely on the advice and recommendation of Dr Farrand. In paragraph 23 the Tribunal records the finding of Mr Carroll, after the disciplinary hearing: "He took the advice of Dr Farrand that the risk of his driving was too great", and then, in relation to the appeal, Mr Leonard is recorded, at paragraph 27 of the Tribunal's Decision as having referred to Dr Farrand having:

"…made a risk assessment that precluded the Applicant from driving. It was Mr Leonard's ultimate position that he accepted Dr Farrand's opinion and interpretation of Dr Silas's report and his subsequent risk assessment. Mr Leonard… looked at alternative employment but none were available at that point in time. Mr Leonard decided to uphold Mr Carroll's decision to dismiss."

19. Both sides agree that assistance can be derived from the authorities on what one might call ordinary questions of unfair dismissal, conduct cases, and cases which depend upon the fair investigation of conduct, being British Home Stores Ltd v Burchell [1978] IRLR 379, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, and Post Office v Foley & HSBC Bank plc v Madden [2000] IRLR 827. It is also common ground that assistance can be derived from Jones v The Post Office [2001] IRLR 384 (a disability discrimination case). It is similarly common ground that the employment tribunal must not substitute its own views for that of an employer if the employer formed and had a reasonable belief in the facts, and acted reasonably.
20. The reports upon which the employer plainly relied have been recited by us earlier in this judgment. The Tribunal, at paragraph 19, refers to the risk assessment by Dr Farrand of
    8 June 2003 in this way:

"It was Mr Carroll's view that it was not his role to interpret the letter from Dr Silas, but that he had to rely on Dr Farrand to interpret Dr Silas's advice. However, the Tribunal find that Dr Farrand's interpretation of Dr Silas's report was selective and to some extent unreliable as Dr Farrand was not a cardiologist."

We have not had it explained to us in what respects that view of the Tribunal is made out. It does not appear to us to be supportable, and certainly no respect in which the employer is supposed to have identified this has been put forward. The Tribunal continued:

"There were a number of matters that may have needed further clarification, but no further clarification with Dr Silas was sought. Dr Farrand in his letter used a methodology for ascertaining the level of risk attached to the Applicant, but none of the witnesses from the Respondent Company understood how this worked."

We have already implicitly indicated that we do not understand the relevance of that, unless it is suggested that the letter of 8 June 2003 was obvious gobbledegook. The Tribunal continued:

"Therefore even though Dr Silas ended by saying that he suspected a DVLA's driver's medical section would permit the Applicant to retain his Group 2 licence, Dr Farrand formed the view that he should not return to bus driving duties with the Company and that alternative employment should be sought. Dr Farrand also mentioned the fact that the Applicant had not been candid about his medical history and did not fully disclose medical information unless specifically asked. By this time DVLA had given the applicant the all clear to drive Group 2 vehicles."

although it is not clear what information was supplied to the DVLA at that stage.

21. Those are the references made by the Employment Tribunal to the original risk assessment of 8 June 2003, but the Tribunal does not return to that letter or report when it comes to its conclusions in the section, to which we now turn, at the end of its Decision; and it does not appear that it was upon any of that that the Tribunal relied. So far as that is concerned, the nub of the Tribunal's Decision, as Mr Snarr himself has accepted, is in paragraph 40 of the Decision, and Mr Snarr has dissected that paragraph to pull out what he calls eight points upon which the Tribunal relies. None of those eight points relate to the risk assessment of 8 June.
22. The Tribunal, then, concluded as follows, under the heading "Proper Medical Investigation":

"39. In respect of medical investigation the Tribunal finds the employer's actions fall short of what a reasonable employer would be expected to do. Whilst an expert was consulted his opinion disagreed with that of the applicant's adviser. There was an opportunity for arbitration which the applicant could not afford himself and of which the respondent company were aware. The company should have pursued this option or at the very least put the applicant's consultant, Dr Mushawar's concerns to their own consultant, Dr Silas, to see if he would change or revise his opinion. Whilst it is not automatically unfair not to get a third opinion in this case we think those further steps in view of the applicant's twenty years' service would have been the steps a reasonable employer would have taken. In addition DVLA's medical advisers were never consulted although the respondent had been invited to do so."

Before continuing, we should refer to the DVLA position, as disclosed in the information supplied by the DVLA as revised in January 2003. That includes the following:

"In the interests of road safety, those who suffer from a medical condition likely to cause a sudden disabling event at the wheel or are unable to safely control their vehicle from any other cause, should not drive."

There is a specific reference then to Group 2 vehicles and licence groups, as follows:

"Group 2 includes large lorries (category C) and buses (category D). The medical standards group for Group 2 drivers are very much higher than those for Group 1 because of the seize and weight of the vehicle and also the length of time the driver may spend at the wheel in the course of his/her occupation."

Under "Notification to DVLA", the document reads as follows:

"It is the duty of the licence holder or licence applicant to notify DVLA of any medical condition, which may affect safe driving. On occasions however, there are circumstances in which the licence holder cannot, or will not, do so.

The GMC has issued clear guidelines applicable to such circumstances which state:

1. The DVLA is legally responsible for deciding if a person is medically unfit to drive. They need to know when driving licence holders have a condition, which may, now or in the future, affect their safety as a driver."

This is addressed to doctors, as is clear from the reference to the GMC (the General Medical Council), and, indeed, to the fact that what follows refers to "patients" having such conditions.

23. The schedule attached to the information was in fact revised in August 2003, and it related to what disorders, and in this case cardiovascular disorders, were of specific importance. They include the consequences of angina, and the event of an angioplasty. The angioplasty, which, of course, had been undertaken by this Applicant in October 2001, was one which was plainly directed at angina, which may well then have been suffered by the Applicant. But neither angina nor angioplasty were specifically addressed in the events which led up to the Respondent's dismissal, although both the risk of angina and the fact that the angioplasty had not been disclosed at the time to the employer, notwithstanding the Applicant continuing to drive, was plainly part of the risk assessment by Dr Farrand in his concern as to the element of risk caused by an apparent reluctance to disclose by the employee.
24. The two relevant disorders which appear in the schedule are, first, hypertension. Under 'Group 2 entitlement' hypertension "disqualifies from driving if resting BP consistently 180mm Hg systolic or more and/or 100 mm Hg diastolic or more. Re/licensing may be permitted when controlled provided that treatment does not cause side effects which may interfere with driving."
25. The other reference is to hypertrophic cardiomyopathy; and that, so far as Group 2 entitlement is concerned, reads as follows:

"Disqualifies from driving if symptomatic.

Re/licensing may be permitted provided that the following criteria can be met and there is no other disqualifying condition:

1) He/she is asymptomatic

2) There is no family history of sudden cardiomyopathic death.

3) The cardiologist can confirm that the HCM [that is the hypertrophic cardiomyopathy] is anatomically mild.

4) No serious abnormality of heart rhythm disturbance has been demonstrated…

5) Hypotension does not occur during exercise testing."

It was plainly the absence of confirmation that the HCM was anatomically mild, indeed the indication to the contrary, which caused concern to Dr Farrand.

26. The conclusion by the Tribunal as to what would or may have been fair or reasonable in paragraph 39 could not, in our judgment, possibly have been the end of its conclusion, in the light of the need specifically to address paragraph 11 of Arnold J's judgment in Edwards. There are always going to be circumstances, particularly given an employee of 20 years' service, where it could be that a Respondent would have acted more fairly or more reasonably if more medical advice has been taken. Set against that, of course, would be the nature of the medical advice given to the Respondent Company and, as here, the submission by the Respondent, which must obviously be right, although no specific finding is made about it by this Tribunal in its Decision, that theirs was a safety critical industry: see paragraph 2.2 of the Tribunal's Decision.
27. The Tribunal does go on to deal, implicitly, with paragraph 11 of Edwards in paragraph 40 of its Decision. Whereas Mr Snarr did at one stage in the course of his submissions suggest that the conclusion in paragraph 39, of itself, would have been sufficient to justify the Tribunal's Decision of unfair dismissal, he was not in a position to pursue that and in the end, we consider, accepted the proposition, as he must, that in the light of paragraph 11 of Edwards, and the duty of the Tribunal, it was necessary for the Tribunal to go on and consider the matters such as those in paragraph 40 also, and that the correctness or otherwise of the Tribunal's Decision in this case depends upon paragraph 40.
28. Before we turn to paragraph 40, we should deal with paragraph 41, which says as follows:

"Finally, the most unfair matter was that on 12 November Dr Farrand suddenly decided that to test the applicant for fitness a 48 hour ECG was necessary. This had never been mentioned before. If this truly was a good measure of the applicant's fitness then the applicant should have been allowed to take a 48 hour ECG, but instead Mr Draper moved to dismiss the applicant on the basis of 12 November letter and did not give him an opportunity to do a 48 hour ECG."

We do not understand that that is a fair summary of the report of 12 November, which we have quoted. What Dr Farrand was there saying, in our judgment quite plainly, was that if the view of Braunwald in Cardiology is to be allowed to be ignored, and the view of Dr Mushahwar preferred, then it could only be so preferred if there were a 48 hour ECG, which there had not been. Indeed Mr Snarr accepts that Dr Farrand was not there suggesting that there should be a 48 hour ECG. It appears to us clear that, at the highest, this, in paragraph 41, must be taken together with the other views of the Tribunal as to what might have been more fair or reasonable in paragraph 39, the taking of a third opinion or the taking of a 48 hour ECG. There would still need to be considered the central question as to whether it was or was not within the reasonable of reasonable responses of an employer to rely on the recommendation by Dr Farrand in the risk assessment of 8 June 2003, as updated in the light of his consideration of the report of Dr Mushahwar in his 12 November report.

29. And so it is to that paragraph, paragraph 40, to which we turn as being, on any view, the central aspect of this Decision. It reads as follows:

"We also find that Dr Farrand was biased against the applicant. To some extent this was understandable in view of the fact the applicant had not been candid with him in some respects and had also failed to self-report his coronary problems before his coronary angioplasty operation. However this bias [affected] his judgment of the case. We find this on the basis of the references to uncooperative attitude but also in particular to his letter to Dr Silas of 7 March regarding 15 January incident where he refers to the applicant having had two collapses when there had only actually been one. The whole letter was over exaggerated. In addition the doctor's opinion of 12 November in respect of Dr Mushawar's medical evidence was hostile and we find overstepped the boundaries of professionalism. We based this on the fact that he said there was "not one iota of credibility" to the applicant's case and also the reference to the fact that Dr Mushawar had not commented on the applicant's safety to drive a bus merely his ability. We find that clearly a medical practitioner would include in saying if somebody was able to drive a bus the concept of safety and we find that Dr Farrand displayed an unduly hostile attitude to Dr Mashawa's opinion. In addition the respondent did not go back to Dr Mushawar and put to him his concerns or, as we have previously mentioned to Dr Silas."

30. We are not entirely sure what the Tribunal meant by Dr Farrand being biased against the Applicant. The sentences, the second and third sentences, that follow in paragraph 40 from the recording by the Tribunal of its finding that Dr Farrand was biased against the Applicant, do not help us in concluding what it is that the Tribunal meant. It says that "[t]o some extent this was understandable", and we are not entirely sure whether it means that the fact that Dr Farrand was biased was understandable, or something else. Clearly, if Dr Farrand was biased, "understandable" may mean 'to be sympathised with', but certainly could not mean 'excusable'; and it does look as though, in the sentence in question, the Tribunal is saying that something is excusable, based upon what was clearly a conclusion open, if not compulsory, for Dr Farrand, that the Applicant had not been candid with him, as it was put, in some respects.
31. The next sentence then says "However this bias [affected] his judgment of the case" and it looks as though it is the same bias in the third sentence as is being referred to in the second. What is being referred to in the second is a perhaps healthy scepticism or cynicism, resulting from the fact that the Applicant himself, in Dr Farrand's view, could not be relied on to self-report, perfectly understandably, where his occupation was so obviously at risk. But it is clear that the Tribunal is of the view that there was something more than healthy and understandable scepticism and cynicism, and the balance of the paragraph records the conclusions which the Tribunal reaches.
32. We are by no means clear that had it been our task to reach such and opinion we would have reached anything of the same view, even allowing for our uncertainty as to what is meant by the word "bias". It is plainly important that a Consultant Occupational Physician bear in mind different factors from the factors borne in mind by a specific medical specialist. That is clear from what we have quoted earlier, by reference to the risk assessments. It is also important that such a physician is entitled to be, and will be expected to be, robust in the interests, of course, of the protection of others than the Respondent and the Applicant, such as the consumer or the public. Robustness cannot be regarded as bias.
33. But, leaving aside what a view might have been as to whether the matters set out in paragraph 40, either separately or cumulatively, amount to a matter of bias or a matter of robustness, the true issue in this case does not appear to us to have been addressed. The true issue is whether the employer was acting unreasonably in relying on the opinion of Dr Farrand. Mr Snarr submits that, such is the nature of the criticisms which the Tribunal find, there was in fact an implicit conclusion that the report of 12 November was obviously biased or was obviously flawed or was obviously not worth the paper it was written on. The Tribunal did not say so. We have already, in the course of our analysis of the letter of 21 November, referred to the three respects in which, in our judgment perfectly understandably, although as laymen we are not in any position to judge whether it is right or not, Dr Farrand was saying not only that he had cause to doubt, even as a non-expert cardiologist, the conclusions of Dr Mushahwar, but that on his analysis, the contents of Dr Mushahwar's report and the findings or non-findings of Dr Mushahwar echocardiogram not only supported the view of Dr Silas, and his own risk assessment, but positively increased his concerns.
34. The Tribunal appears to have formed a different view about the content of that letter, a view that, as we have indicated, we ourselves would not have formed. But what the Tribunal was required to address was not its view of the letter of 12 November 2003, or its view of the error in the letter of 7 March referring to two collapses, when there had only been one, but as to whether the Respondent had acted reasonably in their reliance on the reports of Dr Farrand, which it cannot be doubted that they placed. In essence, what would be needed would be a finding that the ordinary principle of Liverpool v Edwards had, on the facts of this case, been ousted so as to make it unreasonable for an employer to have done that which ordinarily it is reasonable for them to do. And from that point of view, Mr Snarr accepted that the test would be whether no reasonable employer could have relied on the report of Dr Farrand to dismiss. We agree with that formulation; indeed it was ours, adopted by Mr Snarr in the course of his submission, and he submitted that the answer here was that no reasonable employer would have so acted, ie that any reasonable employer would have concluded, effectively, that the report was not worth the paper it was written on or was obviously flawed.
35. As we have indicated, there was no such finding by the Tribunal. We are satisfied, consequently, that it failed to ask itself or to answer the right question, and this appeal must therefore be allowed on that basis, subject always to the question which we must then proceed to ask ourselves, namely whether we need to remit this to the Employment Tribunal, or can be satisfied that if the Tribunal had asked the correct question, it would have been bound to answer it in the way it did. That is Mr Snarr's submission. For that purpose, we are entitled ourselves to look at what caused the Tribunal to reach the view it did that Dr Farrand was biased against the Applicant. It is plainly unfortunate that Dr Farrand was not called, and was thus not given the opportunity to deal with these severe criticisms of him, which in his absence, and without anyone to speak on his behalf, this Tribunal made. In the High Court we have no doubt that a course would have been taken which would have given the opportunity of a professional to have answered such criticisms, in his own interest, before the conclusions of a Tribunal to this effect were set out. But this is a Tribunal which is dedicated towards resolving issues between the employer and employee; the employer had come to the Tribunal with a case based upon reliance on Dr Farrand, and, so far as we can see, no particular cause to believe that the kind of attack would be made that was made. We have referred to what was said earlier by the Applicant to Mr Carroll, but it had certainly not featured as a ground in the Originating Application. We understand from Mr Snarr that effectively it was in the course of his cross-examination of the Respondents that such a case became apparent, and no application for an adjournment was made by either side so that Dr Farrand could be called.
36. We should say one thing about what was, at one stage during the argument, called the dog that did not bark. There is some suggestion in the evidence, not clarified at all and certainly not mentioned in the Decision, that the Applicant had made a complaint about Dr Farrand earlier in 2001. There is, contained in the bundle, a letter, written by the Applicant to Mr Lockhead of the Respondent on 27 December 2001, which was before the Tribunal but, as we have indicated, was not referred to by it, in which a complaint is made against Dr Farrand to the Respondent. There is also a letter in response, dated 10 January 2002, by Mr Leeder, the Managing Director of the Respondent, saying:

"Dr Farrand is an experienced and well-respected Occupational Health specialist - we have no doubt as to his integrity and professionalism."

37. It can be seen that if some finding had been made by the Tribunal that the earlier complaint had been in some was justified; or alternatively had been wholly unjustified, but that Dr Farrand had been irritated by it; and that in some way the presence of this earlier alleged complaint affected the judgment of Dr Farrand; and that in some way the Respondent employer knew or must have known that; and that, as a result, the independence of Dr Farrand's advice must have been, or should have been, known to have been absent; and that, as a result, some doubt ought to have been cast in the mind of the Respondent against the integrity and the correctness of the advice of Dr Farrand; then the issue of bias might well have been dealt with in a different way by the Tribunal. Mr Snarr relies upon the fact that the Tribunal, as he puts it, must have decided it did not need to rely on any such finding, as supporting the conclusion that the Tribunal reached. This appears to us to be an inverted and perverse argument. The reality is that, given that the Tribunal made no such finding, the basis upon which the Tribunal reaches its conclusion is the more dubious.
38. The reality is, however, that neither was there any such finding, nor indeed exploration of those facts; nor was there any evidence from Dr Farrand or any explanation of his motives or his integrity. We are satisfied, looking, as we do, simply at the facts set out in paragraph 40 of the Tribunal's Decision, which are drawn from a critique of the letter of 12 November, which we ourselves do not share, that it cannot be said that no reasonable tribunal could do other than come to the conclusion that there was unfair dismissal by virtue of no reasonable employer being entitled to rely upon the advice of Dr Farrand, if the matter were remitted.
39. We turn to the reverse submission, which was made by Mr Sutcliffe. He submits that, as we have now decided that the Tribunal erred in its approach in law, we can and should substitute our own decision that this was a fair dismissal, and there is no ground for ousting the ordinary operation of paragraph 11 of Edwards, or the ordinary principle that a respondent employer is entitled to rely on its Occupational Health Physician, provided that there is no finding that it was obviously flawed.
40. We have concluded that we are not sufficiently certain that if the question was put to another tribunal, they would be bound to come to the conclusion that there was here a fair dismissal. We say that for two reasons:

(i) We are satisfied that the wrong question was asked by the Tribunal, as we have indicated. The right question would have been whether this employer knew that the advice was flawed, or ought reasonably to have known it, and that no reasonable employer would have been entitled to rely upon this report. We are ourselves, as we have indicated, not persuaded by the conclusions of this Tribunal in paragraph 40. but we cannot say that no tribunal might not be so persuaded; and, in any event, it may be that on a rehearing Dr Farrand might be called, and a fuller picture obtained by a tribunal of the true position.

(ii) There is the fallback argument for Mr Snarr, arising out of his submission that even if it is not right, or would not be right, to write-off Dr Farrand's advice upon the grounds set out in paragraph 40 of the Tribunal's Decision, nevertheless the reasons in paragraphs 39 and 41, taken together, coupled with the 20 years service of the Applicant, might possibly found some basis for ousting paragraph 11 of Edwards. We would not be persuaded that this was a likelihood, were it not for the additional point which is raised in paragraph 43 of the Tribunal's Decision, referring to what it calls the number of procedural defects. The only one of those alleged procedural defects which we would consider to be relevant, and which was relied upon by Mr Snarr, is the fact that Dr Farrand's report of 12 November was not supplied to the Applicant until the reconvened appeal on 14 November itself; so that it might be that there could have been something which might have been done in response to that report, which was not done. There is no indication as to what that would have been, or as to what the result of any further medical examination might have been. We do know that, so far as this Applicant is concerned, he is no longer driving buses. This we know from the result of the Remedy Decision.

41. We cannot be entirely satisfied in our mind as to what the results would have been in this case, had the correct questions been asked. It may be that the question will simply be that this Respondent was entitled, as Mr Carroll and Mr Leonard, and, indeed, Mr Draper said they did, to rely upon the advice of Dr Farrand and his assessment of the risk in the light of the evidence before him. But that will be a matter for a further tribunal.
42. As to whether the tribunal hearing should be before the same Tribunal, or before a different tribunal, there have been counter-submissions put forward on this, and of course the recent case of Sinclair Roche & Temperley v Heard [2004] IRLR 763 has indicated that the more traditional approach that really it should be almost never that a remission should be back to the same Tribunal can be looked at rather more flexibly. That is particularly the case where proportionality is important. In Sinclair Roche, and in one other recent decision in which a similar order was made, the tribunal hearing had gone on for many days, and sending the matter back to start again in front of a fresh tribunal would have led to substantial costs, and that was a factor which fell to be borne in mind. That is not the case here, where there was only two days of hearing, and consequently a rehearing, starting from scratch, would not carry with it the same kind of damaging consequence.
43. But there is another factor which, in our view, is determinative in this case. There will be many cases in which a tribunal which has not finished its job, or which has not asked the right question, can be asked to revisit a case and simply round off the exercise. We are satisfied that is not this case. It is quite plain that this Tribunal has reached, just as Dr Farrand did, robust opinions, and we suspect it would be almost impossible, notwithstanding the professionalism of the Employment Tribunal, for it to be able to stand back and reach any other conclusion than it has reached already as a result of this hearing, or truly reconsider the facts, clear of any preconceptions. We are satisfied that this is a case which should be remitted to a different tribunal to start again afresh, and reach its own conclusions. To that end, therefore, we quash the Decision of this Employment Tribunal, and remit the matter for rehearing by a differently-constituted tribunal.
44. We cannot end other than by saying that we very much hope that this is case where mediation or conciliation by ACAS, which is available to the parties, may be of some use; and we urge the parties, and indeed will include in our Order the requirement, that they both consider a reference to ACAS before any further costs are expended.
45. This Order will include a stay on the appeal, which has a separate number, against the Remedies Decision, with liberty to restore to both parties. If the Liability Decision dies, either by virtue of compromise or by virtue of second time round the Applicant losing, then the Remedies Decision goes. If, on the other hand, the Liability Decision is re-enacted in favour of the Applicant, then we will have to reinstate the appeal against the Remedy.