United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ALEMORU (Representative) Vista Employer Services Ltd Regent House Heaton Lane Stockport SK4 1BS
For the Respondent	MR D GEEY (Of Counsel) Instructed by: Messrs Berkson & Berkson Solicitors 40 Hamilton Square Birkenhead Merseyside CH41 5BP

SUMMARY

(1) The Appellants dismissed the Respondent after a long period of post-accident sickness, including a phobic anxiety about returning to the Appellants' workplace. The Employment Tribunal found that the Respondent had been unfairly dismissed and that there had been disability discrimination. They awarded £15,000 for disability discrimination and a basic award; no compensatory award was sought.

(2) The Appellants' appeal against the disability discrimination finding was not opposed; the Employment Tribunal had based it on an act of discrimination which had neither been pleaded nor relied upon before them. The consequential award was set aside.

(3) The Appellants' appeal against the unfair dismissal finding was rejected; the Tribunal had been entitled to conclude on the facts that, despite the strength of the medical evidence, because the Appellant had offered to provide further rehabilitative treatment which was rejected on the basis that the Respondent had just started his own course of such treatment, it was unfair to dismiss before the outcome of such treatment was known.


 


HIS HONOUR JUDGE BURKE QC

The Background

1. The Claimant, Mr Wilson, was for some years prior to August 2004 employed by the Respondents, Airbus UK Ltd ("Airbus") as a semi-skilled fitter at their factory at Broughton, Cheshire. On 26 February 2003 he sustained a serious accident at work which caused injury to his back and damage to his hearing. In addition he developed a psychiatric condition which was variously described but which involved, according to Dr Gann, a Specialist Occupational Physician who examined Mr Wilson on the instructions of Airbus, a phobic anxiety about returning to the Airbus site. The accident that Airbus' fault. They were prosecuted under their Health and Safety at Work Act 1974 and pleaded guilty; and they admitted civil liability for Mr Wilson's injury.
2. In June 2004, well over a year after the accident, Dr Gann, to whose conclusions we will come in more detail later, expressed the view that there was no prospect of Mr Wilson's returning to Airbus in the foreseeable future (which meant at least a year) as a result of his psychiatric condition and that, unless the phobic anxiety could be overcome, there was no route to rehabilitation through work. After a meeting between Ms Jamison and Mr Dodsworth of Airbus and Mr and Mrs Wilson at the latter's home on 16 July 2004, Miss Tsourous of Airbus dismissed Mr Wilson with effect from 3 August 2004.
3. Mr Wilson claimed that he had been unfairly dismissed and had been the victim of disability discrimination. The Employment Tribunal, sitting at Shrewsbury and chaired by Mr Williams with Ms Peel and Mr Cooper as lay members, concluded that Mr Wilson had been unfairly dismissed and that his disability discrimination claim succeeded. No claim for compensation for loss of earnings was sought because any such loss was to be pursued in civil proceedings. The length of Mr Wilson's service with Airbus was in dispute; for that reason the Tribunal adjourned their assessment of a basic award, indicating a hope that the parties would resolve that issue. The Tribunal awarded Mr Wilson £15,000 as compensation for injury to feelings arising from the disability discrimination.
4. Airbus' Notice of Appeal sets out grounds of appeal against all of the Tribunal's conclusions, ie as to unfair dismissal, disability discrimination and as to the basic award and the award for injury to feelings.

The Facts

5. The primary facts, it seems to us, were not in substantial dispute. We have set out the background history leading up to the summer of 2004, by which time Mr Wilson had been off work for more than fifteen months. On 23 June 2004 Airbus, who had twice extended the period of payment of sick pay to Mr Wilson beyond their strict contractual obligation, decided to cease to make such payments. The Tribunal found that, at that time, Airbus had on the one hand experienced a significant upturn in business and, as a result, a demand for an increased rate of production but that, on the other hand, they had determined that, across the company which employed some six thousand people, costs had to be reduced by five per cent, that headcount could not be increased and that therefore no-one could be replaced while remaining as an employee on the books.
6. On 10 June 2004 Dr Gann provided to Airbus the medical report on Mr Wilson to which we have referred above. We believe that it will assist in the understanding of the Tribunal's conclusions and of our conclusion on this appeal if we set out in this judgment substantial extracts from that report. Under the section headed Report on Visit Dr Gann said:

"Report on Visit

I arrived with Chris Armstrong just before the appointed time to find Mark and his wife Debbie waiting for us. Both were cooperative and communicative, though Mark was anxious for the visit to be completed. Mark told me he seemed to have a problem with work and with people from Airbus. If he saw the Airbus logo, for example on a shirt he would get anxious. He would try and avoid people whom he knew to work for Airbus. He was however fully mobile, could walk with his dog, do his shopping, and drive his car. He said that he could easily drive as far as Airbus, but could not bring himself to approach or enter the site. He said that although he and his wife had been asked to attend Airbus the next day there was no way that he would be able to go. He admitted to a significant consumption of alcohol which he and his wife acknowledged contributed to his incapacity. He had been treated for depression but had recently stopped medication. Treatment was through his GP who apparently admitted being out of her depth with him. He was not having any specialist support. He had been told there was two year wait for an appointment on the NHS. Nevertheless he had been referred to psychiatric services in August 2003 and was seen at "St. Caths" as a possible suicide risk. It would appear the assessment did not bear this out and no further arrangements for care were made.

Both Mark and Debbie commented on a steady decline in mental health over the last 10 months. They told me that their solicitor was now arranging neurological and psychiatric reviews privately. They acknowledged that his drinking was not helping.

Examination is necessarily limited in the home environment. I looked at Mark's back. As before there is some angulations at the fracture site but the back is stable. There are no neurological symptoms attributable to the injury. His back flexion appeared limited, hands to knees, but this was a voluntary limitation (i.e. one that could have been overcome through commitment to physiotherapy) rather than necessitated by the back itself. He was wearing a hearing aid for his right ear which provided good amplification and through that, reduction in tinnitus. I would judge his mood as low. There was almost something retarded about his speech though he clearly understood and responded appropriately to questions.

We discussed the prospects of returning to work. At present there are none. The obstacle is mental rather than physical. He has a deep rooted anxiety about approaching or entering the Airbus site. Nothing has occurred to change this since the accident, and his use of alcohol actively contributes to the failure to regain mental health. I would have been inclined to attribute the current situation as resulting primarily from an emotional response to the accident and blame directed at Airbus, governed by his own inherent level of mental resilience. However the fact that the accident also appears to have affected his hearing, despite no fracture of the skull, does bring into question whether physical damage to the skull contents has contributed to the steady disintegration of his personality. There is no doubt that both he and his wife suffer from the change in his personality, recognising he is no longer the "cool dad" he used to be to his daughters (natural and adopted).

I said it was difficult to be optimistic about returning to work at Airbus. He and Debbie agreed. He said he would need "treatment" to begin to contemplate a return. Treatment has not even been initiated at 16 moths after his accident. I thought that eventually Airbus would have to draw a line under this absence. In fact that might be a starting point to trying to get their life together. They both seemed to accept that this was the likely outcome."

In his opinion Dr Gann said:

"Opinion

I do not think there is any prospect of Mark returning to Airbus in the foreseeable future (this means at least a year). After absences of a year return to the previous place of work are unusual. As time passes the prospects diminish further. The problem is not physical. I think it would have been possible to rehabilitate back to work from the physical injuries by now if the motivation had been there. The fact is that there is effectively phobic anxiety about returning to the one situation that would allow the process of rehabilitation to begin, the Airbus site itself. Without overcoming this there is no route into rehabilitation through work.

I feel we should have a medical report available and I will write to his GP. I will ask for copies of any hospital reports. Unfortunately he has been discharged from the specialist mainly responsible for the care of his back, and has yet to have new appointments arranged with specialists. A1though I think it is appropriate to obtain such a report, I do not think it will alter the conclusion I have reached based on two examinations. I am afraid that Mr Wilson will not return to effective work at Airbus and sooner or later the reality will have to be faced by both employee and employer I would not expect this situation to change through any interventions I can foresee in the intermediate future (one year or more)."

7. The Tribunal found that Dr Gann immediately wrote to Dr Massey, Mr Wilson's GP, seeking a medical report and that Dr Massey replied with such a report on 9 June. In his response, the Tribunal found, Dr Massey largely agreed with Dr Gann's assessment but said:

"At present there is the option of funding available for a private clinical psychologist and we are endeavouring to arrange this for him in the near future."

8. Dr Gann did not get round to forwarding Dr Massey's report to Airbus until 20 August.
9. Meanwhile, on 16 July Ms Jamison and Mr Dodsworth (not Ms Tsourous as the Tribunal say at paragraph 4 – but this is an irrelevant error) visited Mr and Mrs Wilson at home. An agreed transcript of what was said at that meeting was before the Tribunal and is before us. At that meeting the Tribunal said that Mr Dodsworth expressed Airbus' willingness to refer Mr Wilson for assessment and possible treatment to a private psychiatric clinic, The Priory, and that Mr Dodsworth and Ms Jamison learnt that, the previous day, Mr Wilson had been assessed by a Dr Scott who was a clinical psychologist or something of that kind, had found the experience beneficial and was hopeful that some improvement could be affected by treatment under Dr Scott. See paragraph 4 of the Tribunal's judgment. The transcript at page 22 records Mr Dodsworth as expressly offering to explore reference to The Priory and Mrs Wilson saying in response:

"I am not interested. He had more support yesterday than he has had in eighteen months."

And Mr Wilson saying:

"I came out of there yesterday feeling like a different person completely, that's the first time."

It is not in dispute that Mr and Mrs Wilson told Mr Dodsworth and Ms Jamison that Dr Scott had given Mr Wilson twelve further appointments which were to run until December.

10. Ms Jamison and Mr Dodsworth reported this meeting to Ms Tsourous who was responsible for making decisions about Mr Wilson's case. Although the Tribunal did not distinguish between the transcript of the meeting and Ms Jamison and Mr Dodsworth's report to Ms Tsourous (which they may not have had) it was not necessary to do so because, through Ms Jamieson and Mr Dodsworth, Airbus knew what had been said; and no point on the difference between them has been taken. This gist of what was said is in any event accurately conveyed by the report – and the contrary was not suggested to us.
11. Ms Tsourous decided to dismiss Mr Wilson on the grounds of incapability and did so by letter dated 3 August 2004. She did not see Dr Massey's report; but that was available when Mr Wilson's appeal against his dismissal was considered and rejected.

The Tribunal's Decision

12. The Tribunal first considered the unfair dismissal claim. They found, at paragraph 8, that the reason for dismissal was Mr Wilson's inability to return to work in what Airbus regarded as the foreseeable future, i.e. incapability. They then posed the question – Had Airbus made sufficient enquiries into Mr Wilson's potential to return to work so as to enable them to base their decision on a reasonable state of knowledge? It is common ground that that was the appropriate and, indeed, necessary question. They found that there had been a dialogue between Airbus and Mr and Mrs Wilson; Airbus had sought to keep that dialogue open despite difficulties arising from the stress experienced by Mr and Mrs Wilson, which stress is manifest on the reading of the transcript. They then considered the medical evidence. They expressed the view that the conclusions in Dr Gann's medical report of June 2004 fell into two parts; his prognosis was a pessimistic one; he said that Mr Wilson would not be able to return to Airbus for at least a year; but he also advised that despite his own view a medical report should be obtained from Mr Wilson's GP. The Tribunal concluded that Airbus did not wait before taking their decision for that report and did not chase it up; if they had chased it up it might have been discovered in Dr Gann's in-tray. We have already set out what that report would have told them.
13. Instead of obtaining that report, the Tribunal found, Mr Dodsworth at the 16 July meeting with Mr and Mrs Wilson resurrected an offer which Airbus had previously made to Mr Wilson (but which for disputed reasons, which the Tribunal did not need to and did not resolve, had not been taken up) of referral to The Priory and appeared to ignore or not take fully on board the fact that Mr Wilson had already seen Dr Scott the day before. The Tribunal said, at paragraph 10 of their judgment, that they accepted Airbus' evidence that they felt entitled to rely on Dr Gann's opinion; but the Tribunal wondered why (1) if that opinion was complete Mr Dodsworth offered the further referral to the Priory but (2) if it was not complete Airbus did not wait for Dr Massey's report or contact Dr Scott and obtain an opinion from him.
14. The Tribunal recognised that there was urgency in the decision Airbus took; they regarded that urgency as explaining the timing of the dismissal. They concluded, at paragraph 10:

"… In our judgment no reasonable employer could select parts of Dr Gann's report on which it sought to rely, whilst at the same time choosing to ignore other parts which were perhaps less palatable or perhaps did not fit in with the requirements of the business, namely the part of the report that there should be a further medical report. No reasonable employer in our view could hold out the prospect of a further assessment at The Priory to the Claimant whilst being unwilling to way for the result of such further enquiry if it had been agreed to by the Claimant, and if that further enquiry were not agreed to by the Claimant we do not know why this employer did not make enquiry of Dr Scott who, so far, as we can derive, had a similar field of expertise to The Priory. But the Respondent choose not to take that course. In our judgment it is that matter which makes this dismissal unfair. The fact that the Respondent selectively relied upon Dr Gann, did not follow the part of the advice Dr Gann gave which was perhaps unpalatable to them, and did not in any other way follow up the medical enquiry that Dr Gann had indicated ought to be made. We do not say it is only through Dr Massey that that enquiry that could been made but Gann had clearly indicated that some further enquiry was called for; he was not giving an unqualified opinion. In our judgment that does make this dismissal unfair. No reasonable employer would have done that at that time."

15. We can set out the Tribunal's decision on the Disability Discrimination Act claim in brief terms, for reasons which will become apparent later in this judgment. At paragraph 11 the Tribunal set out seven individual complaints of acts/omissions which were claimed to amount to disability discrimination, either by way of disability discrimination pursuant to Section 5(1) of the Act (as it was at the material time) or by way of failure to make reasonable adjustments pursuant to Section 5(2) and Section 6 of the Act. At paragraph 12, they recorded that only some of those complaints had been pursued; they proceeded to address three of those complaints in paragraphs 12 and 13, finding in each case that discrimination was not established. However, they then concluded, in paragraphs 14 to 16, that Airbus had failed to make a reasonable adjustment by failing to adjust the rule that their headcount could not be increased so as to enable someone to be taken on to replace Mr Wilson while he was still on the book; that failure, they found, was not justified. Accordingly, to that extent, the claim under the Disability Discrimination Act succeeded; and it was clear, said the Tribunal, as a result that the dismissal was also an act of disability discrimination.
16. The Tribunal then turned their attention to remedies. We have already said that Mr Wilson eschewed any award for loss of earnings. As to disability discrimination the Tribunal recorded that, understandably in the context, Mr Wilson had said in evidence that, when he received his dismissal letter he felt a weight taken off his shoulders; they concluded that in the circumstances a modest award for injury to feelings of £15,000 was appropriate. As to unfair dismissal there was an issue about Mr Wilson's length of service; he claimed to have been continuously employed for seven years; Airbus relied on an offer of permanent employment which started in January 1999, on the basis of which his length of service was only five years. It was conceded that Mr Wilson had done some work for Airbus in the preceding two years, but on what basis was not clear. The Tribunal therefore adjourned this issue, expressing hope that it could be resolved between the parties but giving them the opportunity to restore the issue the Tribunal if it could not.

Issues other than Unfair Dismissal

17. As Mr Alemoru on behalf of Airbus developed his submissions in support of their appeal against the Tribunal's conclusions as to disability discrimination, it became clear that it was part of Mr Alemoru's criticism of the Tribunal that the complaints of disability discrimination put forward on behalf of Mr Wilson did not include any complaint that Airbus had failed to make a reasonable adjustment by not adapting their headcount rule and that the Tribunal had, in paragraphs 14 to 16, found against Airbus on a basis which had not been put forward by Mr Wilson and had not been canvassed in the evidence or in submission. In any event, he submitted, the Tribunal had failed to identify or properly to identify what were the arrangements made by Airbus which placed Mr Wilson at a substantial disadvantage in comparison with persons who were not disabled.
18. At this point Mr Geey, on behalf of Mr Wilson, helpfully and with admirable professional candour, accepted that, while not making any formal concession, he could not put forward any argument that the Tribunal's conclusions on the disability discrimination claim were sustainable. He also accepted that the three of the seven complaints under the 1995 Act with which the Tribunal expressly dealt in paragraphs 12 and 13 of their judgment and which the Tribunal resolved against Mr Wilson were the only three complaints which were advanced before the Tribunal at the hearing.
19. We can, therefore, dispose speedily of this part of Airbus' appeal. We agree with Mr Alemoru's submission; the Tribunal did fall into error by failing to distinguish between arrangements and adjustment and by proceeding to consider whether it was reasonable for Airbus to make an adjustment by departing from their headcount rule before making the necessary findings under Section 6(1) of the 1995 Act. Mr Geey did not seek to suggest that the finding of direct disability discrimination in paragraph 16 of the judgment, which was dependent upon the Tribunal's conclusion as to the headcount rule, was sustainable. Neither of the bases upon which the Tribunal founded their decision upon this head of claim was argued before the Tribunal.
20. Accordingly, Airbus' appeal against the Tribunal's conclusion as to Mr Wilson's claim under the Disability Discrimination Act must succeed. We will return later to the Order to be made as a result.
21. Mr Geey and Mr Alemoru agreed that we should not, in the circumstances, hear or adjudicate on Airbus' appeal against the Tribunal's award for injury to feelings; which award cannot survive the result of Airbus' appeal against the Tribunal's findings which opened the door to that award.
22. Mr Alemoru did, however, briefly develop his argument that the Tribunal ought to have determined the amount of the basic award for unfair dismissal by accepting, as the start date of the relevant period of continuous employment, the date given in the offer letter to which we have referred in paragraph 16 above. However, he frankly accepted that he had difficulties in demonstrating an error of law on the part of the Tribunal in reaching the conclusion on this issue which they reached; and he was right to do so. In our judgment there was no such error of law. Mr Wilson asserted in evidence that he had continuous service from 1997, albeit not in a permanent job; Airbus asserted that he did not. The documentary material which would have permitted a fair resolution of that issue was not available. The difference between the parties in money terms was £540. In those circumstances, the Tribunal could not be said to have erred in law in declining to resolve that difference on the basis that it could be resolved pragmatically by the parties' investigating further. We are surprised that that has not happened in the four months which have passed since the Tribunal's decision. Mr Wilson has produced a letter dated 27 January 1997 which shows that he was employed by Airbus on a temporary contract for six months from 3 February 1997. Mr Alemoru tells us that Airbus are not sure that, after that six months, Mr Wilson continued in employment until January 1999. We would have expected a company of Airbus' size by now to have obtained the paper work or computer records which would demonstrate the true position. As did the Tribunal, we too express the hope and indeed expectation that the parties will resolve this issue without further recourse to the Tribunal; it is simply not proportionate for the Tribunal to have to consider it again; but whatever may happen in the future, this aspect of Airbus' appeal fails.

The Unfair Dismissal Appeal

23. One might be forgiven for thinking that the amount at stake here, consisting only of the basic award (whatever that may ultimately turn out to amount to) hardly merits vigorous pursuit of or resistance to this part of Airbus' appeal; but we recognise that the unfair dismissal issue is important to the parties and that its resolution may (although we do not see how, at the moment) have some part to play in the civil proceedings; and we have considered with care Mr Alemoru's argument that the Tribunal erred in their conclusion that the dismissal was unfair.
24. We hope that we can, as we intend to do, fairly summarise Mr Alemoru's careful submissions in what follows. He began his submissions by accepting that the Tribunal had expressly applied the correct test, namely whether Airbus' decision to dismiss was a decision open to a reasonable employer; (see the last sentence of paragraph 10 of the Tribunal's judgment) and by refining that test, for the purpose of applying it to the fact of this case, by asking the question at paragraph 8 whether Airbus had made sufficient enquiry into Mr Wilson's potential to return to work. However, he submitted, the Tribunal failed to apply that test because, if they had done so, they would have come inevitably to the opposite conclusion from that which they reached. By August 2004 Mr Wilson had been off work for nearly eighteen months; he had had extensions of sick pay entitlement from thirty-six to seventy-one weeks. Dr Gann in his first report in October 2003 (the relevant contents are repeated in his June 2004 report) had been pessimistic about the prospects of Mr Wilson's returning to work for Airbus, yet Airbus gave Mr Wilson substantial further time before seeking a further medical report and, as part of consultation which he had been offered, proposing to him the services of a private clinic which had not been taken up for reasons which did not involve any criticism of Airbus. Dr Gann's second report made it clear to Airbus that Mr Wilson was not going to be able to return to work for at least twelve months, that then he could return only if his psychiatric condition had been dealt with and that, on balance, he would not return at all, a situation which:

"sooner or later … will have to be faced by both employee and employer".

25. The Tribunal could not reasonably have concluded, Mr Alemoru submitted, that Dr Gann's report was in two parts and by doing so focussed on one aspect only of a report which, read as a whole, informed Airbus that a return to work was highly unlikely. It was reasonable, in the circumstances, for Airbus to conclude that Mr Wilson was not going to return to work at all or to return within a reasonable time and to believe that his employment should be brought to an end.
26. As to the meeting of 16 July, Mr Alemoru submitted that what Mr and Mrs Wilson said confirmed Mr Wilson's determination not to return for Airbus. He referred in particular to pages 2 and 4 of the transcript in which Mr Wilson said, in response to a question as to his return to work, that such a return was 'not promising right now' and that Mr and Mrs Wilson wanted their life back but that going back to work for Airbus was not seen as part of getting their life back.
27. On the basis of these facts, Airbus, it was submitted, were entitled to act as they did and dismissal could not be said to have been outwith the actions of a reasonable employer. While it was correct that Dr Gann has recommended the obtaining of the GP report, the decision to dismiss was not a medical question but one which had to be decided by Airbus as employers in their own circumstances as found by the Tribunal; see East Lindsay District Council v G E Daubney [1977] IRLR 181. In making their decision that Airbus were entitled to rely on Dr Gann's opinion, see Liverpool Area Health Authority (Teaching) Central & Southern 4 District v J Edwards [1977] IRLR 171, and to conclude as reinforced by the meeting that Mr Wilson was not going to return to work with Airbus at all or within any reasonable time.
28. Mr Alemoru referred to other authorities which are set out in his skeleton argument but do not call for individual mention by us. We have of course considered them.
29. For these reasons, set out more elaborately in Mr Alemoru's skeleton argument which he largely followed in his oral submissions, the conclusion that Airbus should have waited longer and made further enquiries was perverse.
30. Mr Geey submitted that Mr Alemoru was putting forward a perversity case (as indeed Mr Alemoru to a large extent accepted) and that, in order to succeed he had, pursuant to the principles set out in Yeboah v Crofton [2002] IRLR 634 (CA), to demonstrate the overwhelming case that the Tribunal had reached a decision which no reasonable Tribunal could reach; but he had not done so. The Tribunal, Mr Geey submitted, took into account Dr Gann's opinion but were entitled to take the view that they did of his advice as to the obtaining of a report from Dr Massey. That was not the only indication to Airbus that they should not immediately proceed to dismiss; for if they had considered the content of the meeting of 16 July as a whole they would or should have appreciated that, while rejecting the offer of treatment emanating from Airbus, Mr Wilson was informing Airbus that he had begun a course of treatment under Dr Scott, that his first meeting with Dr Scott had been successful and that he had not finally closed the door on a return to work for Airbus. It was therefore open to the Tribunal on the evidence to reach the conclusions which they did.
31. We have not been persuaded by Mr Alemoru's submissions. The Tribunal may perhaps have somewhat overstated the position when they described Dr Gann's report as being in two distinct parts; but whether or not that is so, there is no doubt that that report clearly advised Airbus that it was appropriate for a report to be obtained from Dr Massey. The Tribunal did not suggest, at any point, that Airbus were not entitled to rely on Dr Gann's report; on the contrary at paragraph 10 the Tribunal unreservedly accepted Airbus' entitlement to rely on it; but the Tribunal found that Airbus had relied only on Dr Gann's adverse views as to the prospects of a return to work and had ignored the qualification which Dr Gann had expressly imposed upon his views, namely that a further report be obtained. That was, in our judgment, a view which the Tribunal were entitled to form having regard to the expressed terms of Dr Gann's report.
32. Furthermore, by the date of dismissal in August 2004 matters had moved on from June. The Tribunal, correctly on the facts, found that by the date of dismissal Airbus had not followed up Dr Gann's advice that they should have report from Dr Massey. While, at the beginning of the 16 July meeting, Mr Wilson appeared to be resistant to returning to work for Airbus, consideration of the entirety of the meeting shows that the Tribunal were entitled to take the view that Airbus, rather than relying on Dr Gann's adverse opinion as to the prospects of a return to work, were looking at the possibility of taking steps to improve Mr Wilson's condition; for Mr Dodsworth openly resurrected the offer which had been unsuccessfully put forward earlier; he did not say that, because Mr Wilson could at that time see no light at the end of the tunnel, Airbus had no alternative but to dismiss him. Airbus were looking to see if Mr Wilson's condition could be improved by referring him to The Priory. Mr Wilson, while manifestly unhappy about that offer, gave us his reason for rejecting it the fact that he was already seeing Dr Scott, had seen him on a previous day, had come out of that meeting with Dr Scott feeling a different person and had twelve appointments with Dr Scott running until December. Each side was looking at that stage towards rehabilitation rather than finality.
33. In our judgement the Tribunal were entitled to conclude, on the basis of the evidence as to what was said at that meeting and what they thereafter happened ie Airbus' proceeding to dismissal without waiting to see the outcome of Mr Wilson's course of treatment from Dr Scott or consulting Dr Scott or obtaining or chasing up the report from Dr Massey (which would have supported what Mr and Mrs Wilson had said) that no reasonable employee would have on the one hand held out the offer made by Mr Dodsworth to Mr Wilson and yet on the other hand be unwilling to wait for a relatively short period to see what the outcome of treatment at the hands of Dr Scott rather than at the hands of The Priory would be or to make enquiry of Dr Scott or Dr Massey. The Tribunal in the middle section of paragraph 10 of their judgment were clearly expressing the view that it would have been unreasonable for Airbus, if Mr Wilson had accepted Mr Dodsworth's offer, not to want to see what that offer would lead to; and it was equally unreasonable for Airbus, when that offer was rejected because Mr Wilson had already set up a course of treatment from Dr Scott, not to want to see where that course of treatment would lead or at least to obtain an opinion as to prognosis from Dr Scott.
34. The conclusions expressed in paragraph 10 were not, in our judgment, conclusions to which no reasonable Tribunal could come; the evidence provided material upon which a reasonable Tribunal could properly reach the conclusions which were the basis of their decision that Airbus' dismissal of Mr Wilson was not within the range of reasonable responses to the situation with which they were presented when they came to dismiss in August 2004.
35. For those reasons the appeal against the Tribunal's decision as to unfair dismissal fails.

The Result

36. The appeal, in so far as it is brought against the finding of unfair dismissal and the order made by the Tribunal as to the basic award, is dismissed.
37. The appeal against the Tribunal's conclusion that there had been disability discrimination is allowed and the award of compensation under that head is set aside.
38. Mr Geey suggested that Mr Wilson's discrimination claim should be remitted to the Employment Tribunal for reconsideration; we did not hear any argument as to that proposal, no doubt because after Mr Geey, had, in effect, foresworn any resistance to Mr Alemoru's arguments on that part of the appeal, both advocate and we concentrated on the unfair dismissal issues. However, it seems to us that, because only three allegations of disability discrimination were pursued at the hearing before the Tribunal, and, as Mr Geey accepted, the Tribunal at paragraphs 12 and 13 found against Mr Wilson in respect of all three, in the absence of a cross appeal against the Tribunal's conclusion, there are now no live allegations of disability discrimination which could properly be the subject of remission. We will therefore simply allow Airbus' appeal against the Tribunal's findings as to disability discrimination and order that Mr Wilson's disability discrimination claim stands dismissed. Less we have misunderstood the position, we will give both parties permission to apply within fourteen days of the handing down of this judgment for this part of our order to be varied; no oral hearing will be necessary; submissions can be made and adjudicated upon in writing.