United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R J SMITH (Consultant) On behalf of the: Free Representation Unit
For the Respondent	MR D CHARITY (Consultant) Qdos Consulting Ltd Qdos Court Rossendale Road Earl Shilton Leicestershire LE9 7LY


 


SUMMARY

Unfair Dismissal

The Appellant sought to argue that the dismissal was outside the band of reasonable responses by relying on medical evidence that neither the employer nor the Employment Tribunal had seen. Appeal dismissed.

HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Judgment of an Employment Tribunal sitting at London Central on 21 and 22 May 2008. The Judgment of the Tribunal was sent to the parties and entered in the register on 1 July 2008. The unanimous Judgment of the Employment Tribunal was that the Claimant was not unfairly dismissed.
2. At this appeal, Mr Richard James Smith has represented Mr McGivney through the Free Representation Unit. Mr David Charity has represented the Respondent. May we say that we are always grateful to representatives of the Free Representation Unit for the assistance that they give to parties who would otherwise be unrepresented. It makes our task much easier, as well as, I hope, providing some confidence to the Appellant.

The Material Facts

3. These are set out in the Employment Tribunal Judgment at paragraphs 2.1 - 2.9. In summary, the Respondent is a management company for 123 resident holders in Portman Mansions, which are eight linked blocks of flats in Marylebone. The Board of Directors is formed of residents and the residents employed seven full time staff at the material time. They consisted of four porters, two maintenance men and an estate manager, who was a Mr Mark Eves.
4. The Claimant, Mr McGivney, was employed as a porter from 4 January 2005. Together with other porters he worked a shift system, providing 24 hour, 365 day porterage coverage to the Mansions. Each employee had a contract of employment and the job consisted of a number of tasks, ranging from security, collection of rubbish, assisting to clean the common parts, tidying up the gardens and grounds, and liasing with contractors who were working on the property. Unfortunately, friction arose between the porters over a period of time and particularly between the Claimant and a Mr Paul Jirwan who was another porter. This resulted in a formal complaint by the Claimant on 11 June 2006 against Mr Jirwan.
5. Mr Eves investigated the complaints and decided as a result of interviewing the Claimant and Mr Jirwan that he could find no substance in them and took no further action. On 20 June 2006 the Claimant made a grievance against Mr Jirwan, accusing him of deliberate malicious and hurtful acts towards him. On 20 June 2006, Mr Eves held a grievance meeting with the Claimant, which was also attended by Mr Ken Clifford, the Chairman of the Board of Directors. The meeting was in fact inconclusive.
6. There was then a period of time when there was no further formal complaints by the Claimant. In December 2006 there was a positive appraisal of Mr McGivney by Mr Eves. It appears in the EAT bundle at pages 63 - 64. The Tribunal note in paragraph 2.4 of its Judgment that the appraisal was said to be conducted on the assumption that earlier misunderstandings among staff members had been satisfactorily resolved. They said that Mr Eves clearly thought and hoped that this was the case. There were other incidents in early February 2007 involving Mr McGivney wanting to take leave to travel to Ireland which was eventually granted although in truncated form.
7. Mr McGivney made entries in the porters' log but did not specifically complain to Mr Eves. On 19 March 2007, Mr McGivney went off sick and did not return to work before his dismissal for incapacity on 13 September 2007. The Tribunal find in paragraph 2.6 of its Judgment, that the sickness was said to be work related stress according to medical certificates from the general practitioner. Mr McGivney was put on statutory sick pay. On 29 March 2007, Mr Eves phoned the Claimant to see when he might be expecting to return to work but the Claimant apparently asked for his grievances to be reopened and heard by another director, Mr Phillip Moore. Mr Eves regarded the grievances as closed but in fact there was some correspondence thereafter and in May 2007 Mr Eves agreed that the further grievances should be heard by somebody else other than him and said he would arrange for this to be done.
8. This Tribunal notes that Mr Eves was not agreeing that past grievances, which he regarded as closed, should be reopened and investigated by Mr Moore or indeed anyone else. Throughout this time, according to the Tribunal, Mr Eves chased the Claimant for access to his medical records so the Respondent could understand what was wrong with him, how they could help him to return to work and indeed when he was likely to return. In paragraph 2.7 of its Judgment, the Tribunal say this:

"However, the Claimant declined to allow Mr Eves access to his medical records and when Mr Eves asked if they could refer him to an occupational health doctor in a letter of 14 May, the Claimant would not accept the letter and returned it to Mr Eves and then requested the Respondent to contact him through his solicitors. On 2 May, having made a number of requests for access to medical records, or at least a home visit by somebody from the Respondent to obtain medical information, and not having received a response to this, Mr Eves warned Mr McGivney in writing that if a consent was not forthcoming to these various requests they might have to consider a potential dismissal on grounds of capability. Mr Eves declined to deal with Mr McGivney through his solicitors but required him to attend a meeting with himself and a director to discuss his return to work, again advising him of the possibility of termination of his employment. However, the Claimant failed to attend that meeting."

9. We note separately in the letter dismissing Mr McGivney's appeal that there is reference that Mr Eves wrote five times to Mr McGivney requesting access to his medical records. In paragraph 2.8 of its Judgment the Tribunal recalled that there was a further invitation to a meeting by a letter dated 3 September, the meeting to be held on 6 September, to discuss the Claimant's prolonged absence from work, his refusal to grant the company authority to seek a medical report on his condition, and his future with the company. He was told that he was entitled to be accompanied by a colleague or a union representative. He was warned that a possible outcome of the meeting was termination of the employment on the grounds of capability. Mr McGivney did not attend that meeting on 6 September and a further meeting was arranged for 11 September, and the Claimant was asked in writing to attend that. He did not attend that meeting.
10. Mr Eves considered the position in the Claimant's absence, took advice from the Respondent's lawyers, and decided to dismiss the Claimant. He wrote to Mr McGivney on 13 September 2007 confirming the dismissal for reasons of prolonged absence from work, refusal to grant the company access to medical information, and that there could not be any adjustment to duties that would effect a return to work. He indicated that "they" had considered, "they" meaning the Respondent, offering revised hours or part time working or job sharing, but given the demands of this small company this was not feasible and redeployment was not an option.
11. The Claimant was advised of his right of appeal and he sent written grounds of appeal which appear in the EAT bundle at page 39. There were nine grounds of appeal. The appeal was heard on 15 December 2007 by two directors who had not been involved with the Claimant's complaints and grievances; a Mr Law and a Mr Vardis. The Claimant was represented by a Ms Andrews who also represented Mr McGivney at the Employment Tribunal. Mr McGivney has told us this morning that Ms Andrews is a lady who had been a trade union representative. The Tribunal found as a fact that full opportunity was given to the Claimant's representative to put his case forward on the basis of the grounds of appeal, and he was questioned by the panel. He was given the opportunity to say that he was fit to return to work. He agreed at this hearing, that is 15 December 2007, to allow the Board of Directors access to his medical records but Mr Law pointed out to him that he had not agreed such a request before his dismissal.
12. The Tribunal go on to say this, in paragraph 2.9 of its Judgment:

"However, there was a lack of clarity over the Claimant's fitness to work and we have read with care the Claimant's representative's notes of the appeal. Mr Law asked him what his current medical position was and he said he was still ill due to stress and a hostile working environment and complaints not being met. He said he was now well as he was not in the work related environment but then said he was still ill as a result of trauma and all he had been through. There was therefore inconsistency and conflict in what the Claimant was saying about his state of health. When asked by the Tribunal at this hearing what would have had to happen for him to return to work, he referred us to his written complaint of 20 June 2006 which says that he asked Mr Jirwan to formally acknowledge and apologise for the allegations that were being made by Mr McGivney in as much as Mr Jirwan had caused him unnecessary stress, inconvenience and financial cost, and he wanted an undertaking from Mr Jirwan that he cease forthwith his attempts at harassment, coercion and petty manipulations et cetera. In respect of the Claimant's health it was clearly uncertain whether he was fit enough to return to work with the Respondent at the date of this appeal. There then followed a decision by the directors to uphold the dismissal for the reasons they gave in writing to the Claimant, and in particular the question of non access to medical records and the resulting inability of the Respondent to assess the Claimant's medical condition."

13. The letter dismissing the appeal is dated 19 December 2007, EAT bundle pages 40 - 41.

The Employment Tribunal's Conclusions

14. The Employment Tribunal's conclusions are set out in paragraph 8 of its Judgment. They say this:

"8.1 We conclude that the Respondent has established the reason for dismissal and that it relates to capability which is a potentially fair reason under the Act. We therefore pass on to assess whether under section 98(4) that dismissal is fair or unfair having regard to the reason given.

8.2 We are in fact satisfied that the statutory DDP was complied with. The Claimant was given every opportunity to attend the hearings and twice did not attend. He had received stage 1 letters before those hearings. He was appraised of his rights of appeal which he exercised. The appeal considered all the grounds of appeal that he put forward although it is right that the appeal panel did not reopen the old grievances to any extent and concentrated on the medical absence. Further, Ms Andrews had an opportunity to put the Claimant's case. As we have said the appeal concentrated on the Claimant's failure to allow access to his medical records and the reasons for this and how this impacted on the Respondent's decision. It also looked at his current state of health and whether he was fit or not to return to work. We conclude that no procedural flaws have been established which is sufficient to take the procedural aspects of this dismissal outside the bound of reasonable responses.

8.3 The substance of the dismissal. The Respondent attempted to obtain medical evidence and this was denied them. There was a practical difficulty in that the Claimant refused to communicate with Mr Eves who was the only manager in this small business. We have to take into account the size and administrative resources of the Respondent per the legislation. The Claimant expected the directors to be proactive and ask him for his medical records. We find that this is not really a reasonable approach, given that the directors were simply residents who had no day to day management of the Mansions and may not even have known that this is what the Claimant wanted them to do. We also find it was not reasonable to expect the Respondent to deal with him through his solicitors, given that the law says that the employer's obligations are to manage the employee, to meet with him and to discuss the matter with him, concerning his return to work. Of course, we make every allowance for Mr McGivney's stress related illness and we have seen the letter that has been provided after the events by his GP, showing that he was suffering from anxiety and was put on medication for that and that he had symptoms of depression. However, from the Respondent's viewpoint, the Claimant was uncooperative and it was difficult for them to know what to do and how they could best manage the situation.

8.4 We have to ask ourselves what could a reasonable employer in this position have done? The Claimant had been off sick for six months; there was an adverse effect on the portering duties, such that overtime had to be given to the other porters and a relief porter had to be hired temporarily. Further, we note that Mr McGivney himself has told us that he actually felt better after his dismissal, and if he had not been dismissed and had returned to work he would probably not have recovered his health as he has done. There was no realistic prospect of his being reassigned - there was nowhere for him to go within the business, and it could not be avoided that he would work with Mr Eves and Mr Jirwan in the future if he did return to work. It was too late really to address the stale grievances that he was bringing forward. If he returned to work it would have involved both sides putting the past behind them and attempting to work together in the future, and we are not sure that Mr McGivney was capable of doing this. As Mr Charity has said, if the Claimant had resigned and claimed constructive unfair dismissal, then the Tribunal would have been obliged to look at the history of the grievances in some detail. However, we have to bear in mind the case of McAdie, which we have quoted from, and here it has not been established that the Respondent was responsible for the Claimant's stress related absence because the medical evidence is just not sufficient to establish that. Thus, six months on, the Claimant was still being paid statutory sick pay, presumably out of the residents' service charge, and we conclude that really the Respondent had no other option but to do what they did. In essence, we conclude that the decision to dismiss was inevitable and that really there was nowhere else for the Respondent to go, [I think that must be 'the Appellant to go' but that may be right or wrong] and we conclude that therefore the dismissal was within the band of reasonable responses."

15. The reference to McAdie is a reference to the decision in McAdie v Royal Bank of Scotland Plc [2007] IRLR 895, which is summarised in paragraph 5 of the Tribunal's decision in its section on the law.

The Amended Notice of Appeal

16. The original Notice of Appeal was drafted by Mr McGivney or for him. It appears in the EAT bundle at pages 10 - 11. It was replaced by an Amended Notice of Appeal filed at a Rule 3(10) hearing before HHJ McMullen QC on 15 July 2009. The Amended Notice of Appeal is at EAT bundle pages 12 - 13. Judge McMullen QC gave permission to the Appellant, then represented by ELAAS, to proceed on grounds 1 and 2 of the Amended Notice of Appeal but put over the potential ground of appeal, ground 3, to the Tribunal hearing the appeal which of course is us today. We began the hearing by hearing submissions as to whether or not we should grant permission to the Appellant to proceed on ground 3. For the reasons we gave then, we refuse permission. The Appeal therefore proceeded only on grounds 1 and 2.
17. Ground 1 Procedure: outside the bound of reasonable responses.
18. This reads as follows:

"The Employment Tribunal erred in law and proceeded upon a misdirection as to the facts in finding at paragraph 8.3 that Respondent had followed a procedure within the reasonable band of responses. A procedure within the reasonable band of responses would have:

(a) given conduct of the capability investigation and decision to an employee or director of Respondent other than Mr Eves, just as Appellant's renewed grievance against Mr Eves had been (paragraph 2.6);

(b) involved obtaining Appellant's medical reports by another employee or officer of Respondent than Mr Eves [as Appellant had offered them on 10 May to anyone in Respondent other than Mr Eves] (paragraphs 2.7 and 2.9);

(c) investigated and considered the connection between Appellant's complaints and his renewed grievance and Appellant's ill health in the light of the medical reports and the substance of and findings on the grievance."

19. We take each in turn. 1(a): Given conduct of the capability, investigation and a decision to an employee or director of the Respondent other than Mr Eves. The Tribunal had, in paragraph 2.6 of its Judgment, recorded that Mr Eves had arranged for further grievances made by the Claimant, which would have involved him personally, to be heard by somebody else. In the event, no such investigation took place because events overtook that.
20. The Tribunal dealt with this in paragraphs 8.2 and 8.3 of its Judgment. It pointed out first, the size and resources of this very small employer. There were four porters, two maintenance men and a manager, Mr Eves, together with a very part time Board of Directors composed of some of the residents of the Mansions. So far as other employees are concerned, it was quite clearly totally unfeasible or impractical for another employee, whether a porter or a maintenance man, to conduct Mr McGivney's capability investigation. They were on the same level as him. The only manager was Mr Eves.
21. In our view, looking at this organisation, the Tribunal were quite right to reject any criticism of Mr Eves conducting the investigation. Second, albeit that Mr Eves had agreed to any further grievance involving himself to be heard by somebody other than himself, there is no suggestion or finding anywhere in the Tribunal Judgment that Mr Eves was biased or conducted himself untoward in any way in the way he proceeded with the lack of capability investigation. Indeed, his role appears to have been confined to writing letters to Mr McGivney requesting access to medical records or trying to set up meetings, all of which approaches were rejected by Mr McGivney. We can see nothing whatsoever in the fact finding or conclusions of the Tribunal which suggest that Mr Eves was not capable of conducting this investigation.
22. Second, 1(b): Obtaining the Appellant's medical reports by another employer or officer of the Respondent other than Mr Eves, as the Appellant had offered him on 10 May. The 10 May is a reference to a letter written by Mr McGivney which is in EAT bundle pages 37 - 38. It is marked "without prejudice". The relevant paragraph is at page 37. It says this:

"Furthermore, the request for you personally to see my medical records is absolutely denied. I see this as yet another attempt to cast further aspersions on my integrity and perhaps that of my doctor as well, and I will not be drawn into a debate over this side issue. I will happily surrender my medical records to an objective third party when the appropriate time comes, but in the absence of trust or confidence in you personally, I am convinced that this request - coming at this specific time - is simply another ruse under the guise of officialdom designed to defray attention from the original complaints against you."

23. We make various comments about this alleged offer. First, we note that all of the requests made by Mr Eves were made on behalf of the Board of Portman Mansions Management Limited. He was simply the conduit. He was conducting the investigation but he was doing so as a result of the absence of Mr McGivney on medical grounds. Second, requests were made by Mr Eves over a period of months, in writing, five times. Third, it is not at all clear to us that "objective third party" means a director of the Respondent. Fourth, in fact Mr McGivney did not supply the medical records at any time, either before his dismissal or at his appeal.
24. We do not therefore, accept the proposition made by Mr Smith that the Respondent could have obtained the medical records and taken them into account. The tone of Mr McGivney's letter and his actual conduct in respect of the medical records, makes it clear that he was not in fact prepared to do so until he offered them at the appeal.
25. Ground 1(c): Investigated and considered the connection (failed to investigate, we think) between the Appellant's complaints in his renewed grievance and his ill health in the light of the medical reports and how they interacted with the grievance. The factual situation in respect to the medical reports is as I have described it. Despite the requests made by Mr Eves, the Appellant did not produce the medical records. They were not produced to the appeal panel and they were not produced at the Employment Tribunal hearing which lasted some two days.
26. We cannot see how the Employment Tribunal can be criticised in finding that there was no connection between the medical evidence contained in the medical records and its interconnection with the grievance when they never had sight of the medical reports. If the Appellant had wanted the Employment Tribunal to consider the medical reports then they should have been produced. In our judgment, and for these reasons, there is nothing in ground 1. The Tribunal were fully entitled to find that the procedure adopted by the Respondent in this case for the reasons they gave was within the band of reasonable responses and satisfied that test.
27. Ground 2: Dismissal outside the band of reasonable responses.

"(2) The Employment Tribunal erred in finding that the Appellant's dismissal was within the reasonable band of responses and in particular that it was inevitable. In fact the outcome of a reasonable procedure cannot be guessed at, it is dependent on the medical reports and the substance of and findings on the grievance.

(3) In so finding, the Employment Tribunal proceeded upon a misdirection, as to the facts at paragraph 2.4, in finding the Appellant's appraisal in December 2006 was conducted "on the assumption that the Appellant's grievance had been satisfactorily resolved". In fact, the appraisal itself records that the grievance was not resolved to the Appellant's satisfaction at all."

We deal with each in turn.

28. At 2.2 the passage referred to as to inevitability is the passage which I have already read at the conclusion of paragraph 8.4 of the Tribunal's Judgment. It said this:

"In essence, we conclude that the decision to dismiss was inevitable and that really there was nowhere else for the Respondent to go, and we conclude that therefore the dismissal was within the band of reasonable responses."

29. In fact on re-reading that paragraph, it is quite clear that the Tribunal did mean to say Respondent and not Appellant. That sentence comes at the end of paragraph 8.4 which begins:

"We have to ask ourselves what could a reasonable employer in this position have done?"

30. It then goes through the matters, which I have already read. As we have already said in respect of ground 1, the medical reports were never before either the employer or the Tribunal. In those circumstances it is difficult to see how the Tribunal can be criticised for saying that the decision to dismiss was inevitable given the factors that they have considered in paragraph 8.4. If the Appellant or his representative wished the Tribunal to consider the medical evidence then it should have put the medical evidence before the Tribunal. It did not do so. The only medical evidence we understand was a letter from Mr McGivney's general practitioner, written after his dismissal and the Appeal was dismissed, and which did not go into any causal connection between the failure to resolve grievances and the medical condition which he suffered from.
31. In our judgment there is nothing in this paragraph and nothing wrong with the reasoning of the Employment Tribunal in paragraph 8.4. On the material they had they were entitled to conclude that dismissal was inevitable for the reason of lack of capability, which was Mr McGivney's absence from work and after a six month period no clear indication as to when he would return.
32. Ground 2.3 seems to us to be misconceived. As we understand it, it was based upon a document which appears in EAT bundle at page 34. It is now conceded by Mr Smith that that document was not in fact before the Employment Tribunal. The passage which is criticised, that is on the assumption that the Appellant's grievance had been satisfactorily resolved, is taken directly by the Tribunal from the appraisal of Mr McGivney by Mr Eves dated 11 December 2006. EAT bundle pages 63 - 64. The passage quoted by the Tribunal is at page 63. It is Mr Eves' opinion. It was an opinion which the Tribunal found was genuinely held by him. There was therefore nothing in ground 2.3 and nothing in ground 2 as a whole.

Conclusion

33. It follows that we are against the Appellant on both grounds 1 and 2 and for those reasons the appeal will be dismissed.