United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr S J Maguire Representative Belmont HR Solutions Dalziel Business Centre Mason Street MOTHERWELL ML1 1YE
For the Respondent	Mr D Stevenson Solicitor Messrs Thompsons Solicitors Berkeley House 285 Bath Street GLASGOW G2 4HQ

SUMMARY

The claimant was dismissed on ill health grounds. The tribunal found that the respondents had acted unreasonably in doing so and that her dismissal was unfair. The respondents appealed and the Employment Appeal Tribunal upheld the appeal principally on the basis that the tribunal had erred by taking an account of an irrelevant factor, namely what the claimant's prognosis would have been stated to be at a date later than the date of dismissal , that they had substituted their own view for that of the reasonable employer and that the tribunal should not have stopped the claimant from leading evidence from a witness who had material evidence to give.


 


THE HONOURABLE LADY SMITH

PRELIMINARIES

1. This case concerns a claim brought before the Employment Tribunal in which the claimant alleged that she had been unfairly dismissed, had suffered an unlawful deduction from her wages and been discriminated against on grounds of disability.
2. We will refer to the parties as claimant and respondents.

Introduction

3. This is an appeal by the respondents in those proceedings against a Decision of an Employment Tribunal, sitting at Glasgow, Chairman Mr M W MacMillan registered with extended reasons on 17 June 2005. The respondents were represented there and before this tribunal by Mr S. Maguire, Employment Law Consultant, and the claimant was represented there by Mr B McLaughlin, solicitor and before us by Mr Stevenson, solicitor.
4. The appeal was, ultimately restricted to a challenge to the tribunal's finding that the claimant had been unfairly dismissed, leaving its finding of unlawful deduction from wages intact.

The Tribunal's Judgment

5. The tribunal noted that it was accepted that the claimant had been dismissed. The question for them was whether the dismissal had been unfair in circumstances where the dismissal was on grounds of lack of capability arising from long term illness. They found that the respondents had acted unfairly in dismissing the claimant when they did so. They had, according to the tribunal, acted unfairly in their reaction to the up to date information they had regarding her likely return to work date and in their having failed to afford her a proper right of appeal.

The appeal

6. The first respondents have appealed against that decision.. A preliminary matter arose which should have been dealt with earlier but had, regrettably, been overlooked in the London offices of the Employment Appeal Tribunal where the administration of Scottish appeals is being handled at present. It was that the respondents had timeously applied to be allowed to introduce fresh evidence at the appeal hearing but that application had not been fully responded to prior to the appeal hearing, as it should have been. The circumstances were that, at the hearing before the tribunal, a witness, Mr Baillie, had been present and available to give evidence for the respondents. He was the Transport and General Workers Shop Steward for the claimant's workplace. The intention was, it seems, to take evidence from him regarding the respondents' appeal procedures. Mr Maguire advised that he had, however, been told by the Chairman and members that they did not need to hear from Mr Baillie. He did not, accordingly, call Mr Baillie as a witness but would otherwise have done so.
7. Mr Baillie had provided a signed statement. That statement deals with his knowledge of the respondents' appeal procedures and his understanding of the knowledge of the workforce of those appeal procedures at the time of the claimant's dismissal.
8. Mr Stevenson helpfully indicated that he took no issue with the part of the statement that indicated what the respondents' appeal procedures were, as a matter of fact, at the relevant time. He was not able to indicate what the claimant's position would be as regards Mr Baillie's proposed evidence regarding the general knowledge of the workforce, including the claimant, about those procedures. In these circumstances, we decided that it was appropriate for us to proceed on the basis that the part of Mr Baillie's statement indicating what, as a matter of fact, the respondents' appeal procedures were, was a fact in the case. Thus, we took account of the following part of his statement:

"I, David Baillie of c/o Arriva Scotland West Ltd can confirm that I have been the Transport and General Workers Shop Steward at what is now referred to Arriva Scotland West, for 20 years. I can also confirm that I have been Miss Elaine Weir's Transport and General Workers, Shop Steward, throughout her employment at Johnstone.

I am able to verify that in this time any appeals against dismissal would be to an officer of equal or more senior standing within the Company and never to the original dismissing officer."

The Relevant Law

9. Under and in terms of section 98(2) of the Employment Rights Act 1996, lack of capability is a potentially fair reason for dismissal.
10. In the case of dismissal where there has been long term ill health absence, the resolution of the question of whether or not the dismissal was fair will, inevitably, turn to a large extent on the particular facts and circumstances. However, it is incumbent on a tribunal nonetheless to recognise that in such a case, it may be dealing with a conflict between the needs of the employer's business and the interests of the employee and be careful to ensure that it applies the objective test of asking how a reasonable employer might have responded at the time, in all the circumstances. There will often be a range of reasonable responses to the same set of facts.
11. The tribunal requires to consider whether or not the employer had gathered adequate information on which to base its decision. This will usually involve finding out what the medical position is and consulting with the employee. It requires to consider whether the employer has tried to find alternative work for the employee.
12. The relevant principles which fall to be applied in this case would, accordingly, appear to be firstly that where an employee alleges that he has been unfairly dismissed, there is an onus on the employer to establish the reason or, if more than one reason, the principal reason for the dismissal. If the employee seeks to counter the employers' case as to the reason for the dismissal, then he must raise the issue in evidence but once he has done so, the onus remains on the employer to prove the reason for the dismissal. If that onus is discharged and it is shown that the reason for dismissal fell within one of the categories referred to in s.98(1) and (2) of the Employment Rights Act 1996, it is then for the Employment Tribunal to assess whether the dismissal was fair or unfair, bearing in mind the provisions of section 98(4) of the 1996 Act. That is a question that the Employment Tribunal requires to decide not on the basis that there is any onus on the employers to satisfy them that they acted reasonably but on the basis that that question is a 'neutral' one.
13. Secondly, in determining whether or not an employer has acted reasonably in treating an employee's incapacity as grounds for dismissal, the Employment Tribunal are bound to apply not their own opinion as to what would have amounted to reasonable and adequate investigations and enquiries or what should have been concluded about the employee's medical condition but the objective standard of the reasonable employer as to what was reasonable in the circumstances ( Iceland Frozen Foods v Jones [1982] IRLR 439; Sainsbury's Supermarkets Ltd v Hitt [ 2003] IRLR 23 ). In an incapacity case, an employer requires to take such steps as are sensible to consult with the employee and find out about his medical position but it is not for the employer to set himself up as a medical expert charged with the duty to determine any medical issues that arise. As was commented by Mr Justice Phillips in the case of East Lindsey District Council v G E Daubney [1977] IRLR 181 at paragraph 17:

" …it is not the function of employers , any more than it is of Industrial Tribunals , to turn themselves into some sort of medical Appeal Tribunal to review the opinions and advice received from their medical advisers……….employers cannot be expected to be, nor is it desirable that they should set themselves up as medical experts, the decision to dismiss or not to dismiss is not a medical question but a question to be answered by the employers in the light of the available medical advice. "

and at paragraph 18:

" …There have been several decisions of the Appeal Tribunal in which consideration has been given to what are the appropriate steps to be taken by an employee who is considering the dismissal of an employee on the ground of ill health. …..It comes to this. Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position……….what will be necessary in one case will not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him and to inform themselves upon the true medical position , it will be found in practice that all that is necessary has been done."

It is, accordingly, clear that if the employers' response was within the range of responses that were reasonable in the circumstances surrounding the ill health dismissal then it will be held to have been fair. To put it another way, the dismissal will be regarded as unfair if the employers' response was one which no reasonable employer would, in all the circumstances, have had.

14. Thirdly, as ever, it should be remembered that an appeal lies against the decision of the Employment Tribunal only on a question of law ( Employment Tribunals Act 1996 s.21).
15. The claimant was employed by the respondents as a bus driver. She began working with them on 6^th September 2000 and her employment was terminated with her dismissal by letter of 18^th May 2004.
16. The reason for the claimant's dismissal was incapacity due to ill health. She had sustained a knee injury when she fell in a shopping centre in October 2003.
17. On 16^th February 2004, the respondents' Human Resources manager, Mrs Morrison (whose name has been wrongly recorded by the tribunal as being 'Nicholson'), met with the claimant. The claimant advised of her up to date medical position which was, in short, that she had been told that she required a scan. Mrs Morrison advised her of the Healthy Return scheme whereby accelerated treatment can be obtained to enable employees to return to work. The claimant was subsequently accepted by the scheme and arrangements were made for her to receive the necessary treatment privately. It transpired that she required an arthroscopic lateral release operation. A medical report was provided to the respondents dated 25 March 2004 which gave details of the claimant's condition, indicated that she was waiting for a scan and that the claimant would have another three months of incapacity.
18. Mrs Morrison met with the claimant again on 28^th April and discussed her condition. She advised the claimant that her absence from work was causing problems for the respondents. She told her that if no indication of a reasonable future return to work date was given, she would have to terminate her employment. There was discussion of her condition and the claimant advised that she had been told she needed an operation. Mrs Morrison told the claimant that unless the respondents had been given a reasonable return to work date for her by 10^th May, they would have no alternative but to terminate her employment. The claimant mistakenly thought that she had been dismissed that day and tried to appeal the decision. In the course of a subsequent telephone conversation, on 4^th May, she was reassured that she had not been dismissed.
19. By the time of the telephone call, the claimant had been given a date for her operation of 6^th May and she told Mrs Morrison of that date. Discussion ensued as to the likely date of her return to work. The claimant advised that she had been told by a doctor at the hospital that she would be able to return to work about three months after the operation but that she would require physiotherapy for 6-9 months thereafter. As result of a genuine misunderstanding, for which Mrs Morrison was not criticised by the tribunal, she understood the claimant to be telling her that she would not be able to return to work for 6-9 months. There is no finding that the misunderstanding was an unreasonable one. On that basis, Mrs Morrison advised the claimant that her employment was terminated.
20. Mrs Morrison wrote confirming what had passed between them in the course of that telephone call. Her letter, which was dated 18^th May 2004, included the following:

"Normal practice is for Arriva to write to your doctor for an update on your health and to take a joint decision on your case.

We are now in receipt of this Report and met with you on Wednesday 28^th April 2004 to discuss the contents of this Medical Report. Present were the writer, David Baillie, senior TGWU Representative, and yourself.

You then contacted me on Tuesday 4^th May 2004 to advise that through Healthy Return you were going for Surgery that same week, and that the estimated recovery period would be 6 – 9 months.

Unfortunately, we had no alternative therefore than to terminate your employment with Arriva Scotland West as a Bus Driver effective Monday 10^th May 2004, due to ill health."

In the penultimate paragraph of the letter the claimant was invited, if she had any concerns regarding what was contained in it, to contact Mrs Morrison.

21. The claimant made no further contact with the respondents. She did not contact them to question their reference to the 6-9 month period or to question why they were dismissing her when she had told them that the medical advice was that she would be fit for work in three months. The tribunal make two significant findings in that respect. On the one hand they find that the claimant was obviously aware of the respondents' appeal procedure being in existence. On the other hand, they find that the claimant assumed that, in the event of her appealing, Mrs Morrison would be judge and jury in the matter and so there was no point in taking it any further.

The Tribunal's Judgment

22. Regarding the claimant's claim for unfair dismissal, the tribunal's reasoning appears to have been as follows: this was a dismissal for long term ill health incapacity. The employer was, therefore, obliged to satisfy himself as to the employee's health and prognosis. That involves consultation with the employee. The respondents did maintain regular contact with the claimant. They consulted her at every stage. They properly considered whether alternative employment was a possibility. However, the respondents did not, in the view of the tribunal, satisfy themselves as to the claimant's state of health at the time of dismissal because they could have waited to find out what was the outcome of her operation and if they had done that, they would have been advised that there was a reasonable prospect of her returning to work within three months.

Respondents' case

23. On behalf of the Respondent it was contended that the tribunal had erred in law. They had fallen into the error of substituting their own view as to how the respondents should have responded at the time of dismissal, for that of the reasonable employer: Iceland Frozen Foods v Jones. Further, they had been influenced by a factor which could not have been known to the respondents at the relevant time namely what, in the event, was the outcome of the claimant's operation. Mr McGuire submitted further that, given the additional factual evidence now available from Mr Baillie, the tribunal's finding that there was not a proper right of appeal could not stand. Mr McGuire relied on the East Lindsey District Council case. He also referred to the approaches that had been taken in the cases of Sayers v Loganair EATS/0084/04 and Rothwell v Pelikan Hardcopy Scotland Ltd [2006] IRLR 24, both of which were decisions of this tribunal. Some reliance was also placed on a passage in Marder v ITT Distributors Ltd [1976] IRLR 105 where the Industrial Tribunal commented on it being good practice for an employer to fix a date by which it must know when an incapacitated employee will be able to give him information about a return to work date and to the comments regarding the need for adequate consultation in the case of Links & Co Ltd v Rose [1991] IRLR 353.

The Case for the Claimant

24. For the claimant, Mr Stevenson submitted that the central issue in the case concerned the treatment of the claimant on 4^th May. The tribunal were entitled to be critical of the respondents' reaction in dismissing the claimant in the course of the telephone call. Mrs Morrison did not have the true medical position. The respondents had a responsibility to find out what the true medical position was. There was a danger in gathering the information by telephone. The tribunal had also based their decision on the position regarding the appeal. The new fact made no difference. The wording of the letter was such that the claimant had assumed, as found by the tribunal, that her only recourse would be to Mrs Morrison. In those circumstances, the tribunal were entitled to find that the appeal procedure was unsatisfactory and affected the fairness of the dismissal.

Discussion

25. Turning to the arguments advanced, we are satisfied that the indications are that the tribunal erred. At paragraph 27 of their reasons, the tribunal state:

"The respondents were therefore relying upon information being provided to them by an employee who was 2 days away from a serious operation. That information was provided to the employee verbally by a doctor, who in turn was advised by the consultant who would carry out the operation. We have to say that it is astonishing that Mrs Nicholson (sic) would rely on upon that information in these circumstances. It must be the case that the appropriate course of action would have been to await the outcome of the operation on the 6^th , and obtain a written prognosis thereafter . If that had happened, there would have been no misunderstanding as to the true position, and the respondents would have been advised that there was a reasonable prospect of a return to work within three months. There would have been little or no delay in obtaining this information. In all these circumstances it cannot be said that the respondents have met the primary test of satisfying themselves as to the health of the employee and the prognosis as at the date of dismissal."

It is plain from that paragraph that the tribunal have fallen into error. The relevant circumstances in this case were as follows: the claimant was employed as a bus driver. She had an accident on 20^th October 2003 in which she sustained a knee injury which prevented her from working. In February 2004, the claimant advised Mrs Morrison, at a meeting fixed to provide the respondents with an update as to her condition, that she needed a scan as she was suffering severe pain and discomfort. Clearly, she was still unfit for work. The respondents obtained a report from the claimant's GP dated 25 March 2004 in which they were advised that he envisaged a further three months incapacity whilst investigations into the claimant's knee condition were taking place. On 28^th April, Mrs Morrison met with the claimant again to discuss her condition and the claimant told her that it had been determined that she needed a knee operation; she was unsure as to precisely when it would take place but hopeful that it would be in May. Mrs Morrison advised the claimant that if she did not have an indication of a reasonable return to work date by 10^th May, then she would have no alternative but to terminate her employment. There was a telephone call between the claimant and Mrs Morrison on 4^th May. By the end of that telephone call, whilst the respondents were aware that the claimant's operation date was 6^th May, their genuine and reasonable understanding was that the claimant would not be fit for work for another 6-9 months.

26. There was no finding in fact that the claimant did not accurately report what she had been told by her doctors or that the respondents could not reasonably rely on her to do so. In these circumstances, the implied criticism of their reliance on the claimant's report that appears at the beginning of paragraph 27 does not appear to us to be well founded. More significant though is that the tribunal have clearly allowed themselves to be influenced by the fact that the prognosis at post operative stage would have been one of recovery within three months. That, however, was something which they could not have known as at 4^th May. What they knew at that stage was that the claimant would be unfit for another 6-9 months. The tribunal, in taking account of what the post operative prognosis would have been, have taken account of an irrelevant factor.
27. Further, we consider that it is evident from the tribunal's assessment in paragraph 27 that they have not approached matters by asking whether the respondents' reaction was within the range of responses that was open to them. It seems clear to us that they have substituted their own reaction for that of the reasonable employer and in so doing, have erred in law.
28. Turning to the matter of the availability of appeal, the tribunal found, at paragraph 14:

"The claimant was obviously aware of an appeal procedure being in existence, because she had already availed herself of it."

29. In respect of what was contained in the penultimate paragraph of Mrs Morrison's letter of 18^th May, to which we have already referred, the tribunal went on to find:

"Because of the terms of the letter, the claimant assumed that Mrs Nicholson (sic) would be judge and jury in her case, and there was no point in taking the matter further."

At paragraph 28, immediately after the discussion quoted above, they state:

" The situation might have been rectified had there been a proper right of appeal, and consideration of all the facts by someone at a higher level. This did not occur; the letter of dismissal simply made reference to the fact that the claimant could contact Mrs Nicholson(sic) again if she to(sic) required further information. That does not in our view amount to a proper right of appeal."

The tribunal do not, however, reconcile the apparent conflict between their finding that, on the one hand, the claimant was aware of the respondents appeal procedures and this finding that the respondents did not have a proper right of appeal available to her. Further, the latter finding was based purely on the claimant's assumption as to what would happen not on any cogent evidence as to what the respondents' appeal procedures were, evidence of which would have been before them if they had not stopped the claimant's representative from leading Mr Baillie as a witness.

30. We have available to us factual information regarding the respondents' appeal procedures and are aware that it was proposed to seek to lead evidence from Mr Baillie as to employee awareness of those procedures. Those procedures are clearly different from what the claimant assumed that they would have been. The tribunal should not, in our view, have prevented or discouraged the respondents from leading evidence from Mr Baillie. The evidence that parties agreed that we could take into account does appear to be relevant and, as we note, it may well be that Mr Baillie would be able to give further relevant evidence regarding this matter if he were allowed to do so. The tribunal's conclusion regarding the appeal procedures could not be regarded as sound, in any event, given that it flows from errors in law when considering the reasonableness of the respondents' response to the factual situation as at 4^th May. Even if, however, it could have survived the errors surrounding that conclusion so as to leave only the question of the fairness of the available appeal procedures, the availability of relevant evidence that ought to have been heard on the matter but wasn't, means that it cannot stand.

Disposal

31. We have thus reached the view that the appeal is well founded and should be allowed and the case remitted to a freshly constituted tribunal. We consider that a fresh tribunal will be appropriate rather than have the case considered by the same tribunal partly because of the nature and extent of the error into which the tribunal fell and partly because of the respondents' perception that they were prevented from leading evidence which they wished to lead by the original tribunal. Mr Stevenson, who did not seem, on behalf of the claimant , to demur from the account given to us by Mr McGuire of what happened at the tribunal hearing, characterised what happened as being a discouragement to the leading of the evidence rather than it being a matter of prevention. Even if it was a matter of discouragement rather than bar, we do not consider that it was appropriate and for the sake of justice being seen to be done, it would be preferable that the case now go before a new tribunal body.
32. We will, in these circumstances, issue an order allowing the appeal and remitting the case to a freshly constituted tribunal for determination of the issues of whether or not the claimant was unfairly dismissed and if so, what compensation if any, is due to her.