Appeal No. EAT/2/93

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS E HART

	MR J C RAMSAY

MR B WALKER	APPELLANT

STAFFORDSHIRE TABLEWARE LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B PATTEN
(OF COUNSEL)
Messrs Robin Thompson 
& Co
The McLaren Buildings
2 Masshouse Circus
Queensway
Birmingham B4 7NR

For the Respondents	MS S MOOR
(OF COUNSEL)
Messrs Grindeys
Glebe Court
Stoke On Trent
ST4 1ET

		JUDGE HULL QC:		This is a case in which Mr Brian Walker, who is a gentleman of fifty-five, complained to the Industrial Tribunal that he had been unfairly dismissed.  There is no doubt that the dismissal was caused by his illness, which occurred at the end of 1991.  He had been a Police Officer.  He joined the Respondent employers as a Security Officer at their Stoke on Trent factory.  They have a large establishment there, about 38 acres apparently.  The business is the manufacture of pottery and china, tableware.  

	Mr Walker had suffered a knee injury in 1978, which eventually led to his retirement from the Police Force.  He joined the employers on the 28 April 1988, as one of the security staff.  There were four and a supervisor engaged in security.  The Company had a policy with regard to security staff; that is to say that security should be handled by their own staff.  In particular they were reluctant to take on agency staff.  A large part of the security job, which was an active one, was to go round the substantial works, taking on various matters, seeing that plant was switched off, seeing that doors were locked, seeing that security matters were in place, that safes were not being interfered with, all the sort of matters which one would expect; it was an active job.  

	They obviously operated, in terms of the security of staff, at any rate, what might be called "a tight ship".  If any member of the staff were away it would mean that the other three, the remaining three, would have to work very much harder.  They would have to do a great deal more overtime, to fill in for the one who was absent, because of the policy which I have mentioned.  The view was taken, in justification of this policy, that it would take too long to train casual staff, because there were so many aspects of the security officer's job.  

	In 1991, Mr Walker became unwell.  He was absent for a week or so, a few days in September and October and then on the 11 November he was away from work again.  At first he certified himself and then there were medical certificates which were furnished on his behalf.  Some of them are with our papers.  There is a record of his sickness, showing that he was sick from November 11 right through December, and into January.  

	The page after that in the documents bundle, there is one of the doctor's certificates, the first one dated the 15 November 1991.  That appears to say that he should refrain from work until, I think it is the 21st.  He is suffering, says the certificate, from an anxiety state and it appears to say thereafter, acute.  Then it goes on to say something which we read as best we can, lymph node, and it may be metastasis.  That apparently referred to some malignant condition which Mr Walker unfortunately had suffered from earlier.  If it is metastasis, then we understand that that is the condition where it spreads from a primary source of the growth to other places through the migration of cancerous cells.  At any rate, that was what was said there.  

	There were subsequent medical certificates.  Each of these described the complaint which was keeping Mr Walker away from work as osteoarthritis of the left knee.  He continued away from work.  This inevitably caused a good deal of concern and difficulty to this small security team, and to people concerned with this, in particular Mr Cartlidge, the Personnel and Training Officer and later Mr Crookes, who was the Head of Management Services and Personnel.  

	Mr Walker was examined by the employers' doctor and it appears that the employers' doctor was not able really to add anything to the views of Mr Walker's own doctor.  In particular, the employers could not find out what the prognosis was and what was the likely time when Mr Walker was likely to be able to return to work, which of course, was a matter of particular anxiety to them.  There came a time when Mr Cartlidge did his best to accommodate Mr Walker by suggesting to him that he should take a sedentary job, I think still in connection with security; that was on the 17 and 18 December, when he had been away for more than a month.  That he apparently rejected, saying that he did not feel well enough to do that.  On the face of it, it must raise a certain doubt and difficulty in anybody's mind, if a man who is apparently unable to attend to active work because of an osteoarthritic knee, feels unable to accept, even on a trial basis, a sedentary job.
	
	About this time, having considered matters as well as they could, the employers were considering dismissal.  They were considering it before Christmas.  There were, as I say, discussions between Mr Cartlidge and Mr Walker.  We have been taken through the evidence and there are certain matters there to which Mr Patten has invited our attention.  He has invited our attention particularly to what is said at page 21 onwards, first of all by Mr Cartlidge.  These, of course, are the notes of the Industrial Tribunal's hearing, the Notes of Evidence.  According to Mr Cartlidge:

		"The applicant had explained that he had had treatment for a cancerous growth [this was in the course of his illness] .... but that was now under control and that his present absence was related to stress and anxiety which was a consequence of that former illness.  The condition of osteoarthritis in his knee was not mentioned at that interview according to Mr Cartlidge."

	Then we also had our attention invited to what is said later by Mr Cartlidge.  On the 5 December he sought advice from the company doctor.  Mr Cartlidge received a second medical note, referring to osteoarthritis and the company doctor confirmed the symptoms identified on the sick notes.  

	Then there was a meeting on the 17th December.  They discussed the comments of the company's doctor.  Mr Cartlidge asked if a date of return could be predicted or foreseen and Mr Walker, the applicant, said he could not say this.  Then there was the offer of the sedentary job.  According to Mr Cartlidge it transpired that Mr Walker tried to contact Mr Cartlidge but he was unable to contact him by phone.  He did leave a message to the effect that he was not accepting the job offered at the security lodge.  When Mr Cartlidge got this message he was somewhat concerned, it seemed to be an "open ended absence problem", and he tried to contact the applicant.  He did draft, with a view to dismissal, a letter dismissing Mr Walker, that was just before Christmas.  It was not sent because it was desired to have a further meeting and contact with Mr Walker before a final decision was taken.  

	Mr Cartlidge tried before Christmas to contact Mr Walker and failed to do so.  After the holiday, again according to the evidence, Mr Cartlidge again tried to contact Mr Walker.  He got through to him by telephone this time, and asked him whether he would come to the factory to meet him.  Mr Walker was somewhat reluctant to come and asked what it was that Mr Cartlidge wanted to talk to him about, a rather extraordinary comment on the face of it.  Mr Cartlidge finally said that he wanted to know how he might resolve the situation of Mr Walker's continuing absence and to discuss the contents of a letter with him.  He indicated what the letter was about.  The draft was dated the 19 December although the time had passed when it was proposed originally to send it.  At this point Mr Cartlidge said Mr Walker became aggressive, calling the security team, those were his colleagues, "pigs" and alleging that he had been harassed.  He said he had discussed the matter with his advisers and would ring the local newspaper with a good story.  

	This was simply the evidence of Mr Cartlidge.  We can see that the Tribunal did not disbelieve Mr Cartlidge.  It certainly does not sound like an employee who was taking seriously the offer of alternative employment, or who was anxious to reassure his employers that there was a prospect of his coming back soon.  

	In those circumstances, there was a further meeting, that was on the 2 January, and there was a dismissal which took place on the 3 January.  The fact was that the employers had heard nothing more to make them think that Mr Walker was likely to return soon or anything more about the illness.  Now Mr Patten criticises this decision.  

	Mr Walker complained to the Industrial Tribunal on the 17 January 1992.  He had appealed without success to Mr Crookes, who was the head of management services and personnel.  The Industrial Tribunal sat at Birmingham under the Chairmanship of Mr Mellor on the 8 October 1992 and dismissed the complaint of unfair dismissal.

	The appeal to us is against the decision of the Industrial Tribunal and Mr Patten makes a primary point and a number of other points.  First of all, he referred us to the case of East Lindsey v Daubney [1977] ICR 566, which is the authority for the proposition that the employer must carry out a proper investigation and that will include acquainting himself with the best medical opinion that can be obtained and doing his best to satisfy himself about the medical reasons for the absence and interviewing the person who is absent because consultation with the employee, as in other types of cases of dismissal, is in general a requirement of fairness by the employer.  

	He referred us also to Crampton v Dacorum Motors [1975] IRLR 168.  The Tribunal itself was not referred to the East Lindsey case but they referred to Spencer v Paragon Wallpapers [1977] ICR 301.  Mr Patten says that there simply was not the investigation here which there should have been.  There was not the consultation with the employee that there should have been.  The fact was that in this case the employers did no more than confirm by their own doctor the very inadequate medical information which was provided by Mr Walker's own doctor.  That is dealt with, to some extent, not only in the evidence of Mr Cartlidge, but in the evidence of his manager, Mr Crookes.  

	Mr Crookes, as I say, was the gentleman who heard the appeal against dismissal and he was the head of management services and personnel.  He had looked into the medical situation, he was asked about that.  He gave evidence to the Tribunal that the company doctor had expressed his concern about Mr Walker, and about his ability to work unsupervised in the future.  Then he was asked what he meant by that.  Mr Crookes replied that he had felt, obviously from what he had heard from the doctor, that Mr Walker might not be able to work through a night shift and on his own, with no help to rely on if he should need it in the future.  

	Mr Ferguson, a member of the Tribunal asked:

		"Was there no likelihood of the applicant's return to work in 2-3 months?  Mr Crookes replied that neither Mr Brown, on the applicant's behalf, [he was a trade union representative] nor anyone else had suggested that he could return, nor could the applicant give any indication."

	So that was the evidence about that.  The Tribunal had to consider, of course, all these matters.  We have had our attention invited to particular parts of their decision.  They heard the evidence which was laid in front of them by the Applicant, and by the Respondent employers.  They made findings of fact.  I hope I have sufficiently cited from those findings of fact.  They referred to the evidence.  

	They gave their Full Reasons.  First of all, with regard to the law.  They referred to the cases, including Seymour v British Airways.  They had in mind the fact that this Applicant was registered as a disabled person.  They referred to Spencer v Paragon Wallpapers and they also referred to cases concerning discipline with which we have not been asked to deal today, but which are to some very slight extent, perhaps, relevant in the requirement placed on the employer to make a proper enquiry and a fair enquiry and to reach a decision which can be justified as a reasonable decision.

	They go on as follows:

		"The Tribunal arrived at its conclusion by a fine margin, principally because the whole issue was clouded by poor communication between the parties.  

		It was disappointing that the Respondents had not made more strenuous efforts, with the consent and co-operation of the Applicant to contact the Applicant's own doctor.  That might have produced more definitive medical evidence than was put before the Tribunal, and have shed more light on the likelihood the Applicant's improvement and the prospects of his return to work, than the views of the Respondents' company doctor which seemed to do little more than confirm the symptoms and condition of the Applicant."

	Pausing there, of course, they could only refer to the Applicant's own doctor and indeed ask their own doctor to conduct an examination of Mr Walker with his consent and they considered such medical evidence as there was on the basis of that consent.  They go on:

		"There was indeed a requirement on the Respondents to give special consideration to the health problems of an employee known by them to be a registered disabled person at the time of his appointment.  Nevertheless, this must be tempered by reasonableness, and principal difficulty faced by the Respondents was that they were unable to secure any indication as to when the Applicant, after 37 days absence, with another 15 working days medically certified, and a suggestion (in the proposal of an extension of the leave period for another two months before review) of further lengthy absence, would be likely to return to work.

		Further, his condition, osteoarthritis of the knee, was likely to limit the Applicant's mobility and was potentially degenerative, factors which were significant handicaps to the effective operation of a Security Officer."

	Mr Patten makes particular criticism of that part of the decision because he says whatever we know, or think we know, about arthritis as being potentially degenerative, that is really making up a reason for the employers because there was no evidence whatever that the employers had in mind the degenerative character of osteoarthritis in making up their minds.  There does seem, with respect, to be justice in that comment so far as we can judge at this distance. 

	They go on:

		"The Tribunal therefore felt that the Respondents were, by mid-December 1991, entitled to consider the situation in the light of the four factors identified in Spencer v Paragon Wallpapers Ltd, namely the nature of the Applicants illness, the likely length of his continuing absence, the need to have his duties performed, and the circumstances of the case (which in this instance included the burden cast on the other members of a small security team).

		Having considered them, the Respondents concluded that it was unreasonable for them to wait any longer before resolving the situation caused by the indeterminate absence of the Applicant, a conclusion that the Tribunal finds neither unfair nor unreasonable.

		We have also taken account of the fact that the Applicant qualified for an allowance of 60 working days sick leave under his Conditions of Employment, and are satisfied that whilst this may be regarded as a matter of financial entitlement, it is not one of special significance in terms of employment protection."

	That passage is not criticised in any serious way by Mr Patten. 

		"For these reasons, finely balanced though some of the different factors may have been the Tribunal concludes that the dismissal of the Applicant by the Respondents, having regard to all the circumstances, was not unfair."

	Now nobody having read this decision could say that this Tribunal had not addressed themselves fairly, and indeed perhaps anxiously, to the problem which was before them.  I have referred to some of the evidence.  Of course one has to remember that this Tribunal had spent hours considering the evidence and had heard it all, tested by cross-examination because Mr Walker was represented, and were able to form a view about the witnesses which we cannot possibly do.

	Now Mr Patten, as I say, says here that this Industrial Tribunal simply was not entitled to reach the view that the employers had done enough by way in particular of finding out the medical situation and by consulting with the employee, and he referred to the authorities which I have referred to.  There was no material, he says, on which this Tribunal could find that the dismissal was fair.  Mr Cartlidge, he said, made no attempt to contact Mr Walker's doctor.  But they had their own doctor who had confirmed what the doctor said and it is rather hard to see why a layman should approach the other party's doctor in those circumstances.  Of course, it would be a very embarrassing and improper thing to do without Mr Walker's expressed consent and authority.  

	He says that the Industrial Tribunal simply could not, in the circumstances, have regarded this investigation as adequate.  He says that it is true that Mr Crookes gave certain evidence about what the company doctor had said about this:  but he says that the appeal could not amount to a re-hearing.  He then took us to Spencer v Paragon Wallpapers, which the Tribunal itself referred to.  He took us to the question of Mr Walker being registered as disabled.  He says that the Tribunal correctly directed themselves that such people were entitled to special consideration because, of course, if they are simply dismissed by reason of their disability, and if that will always justify dismissal, then it may be unlikely that a disabled person will find or keep employment.  

	He says that the Tribunal failed to make any finding at all on that topic and with regard to failure to consult he says it is perfectly true that there were these discussions between Mr Walker and his employers, but the Industrial Tribunal did not ask themselves if the consultation was adequate, and he referred to certain other detailed matters which he himself said, very fairly, were of lesser importance.

	Now we have to consider the matter first and foremost in the light of the statutory requirements.  Under Section 57 of the Act of 1978, if there is a complaint that a dismissal has been unfair it is of course the right of the employee to complain to the Industrial Tribunal and the duty of the Industrial Tribunal to enquire into the circumstances.  Section 57 provides the statutory framework for the enquiry:

		"(1)	In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-
			(a)	what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
			(b)	that it was a reason falling within subsection (2) ... "

	Sub-Section (2) includes capability and that includes the question, of course, of health.  If a person is unwell they cannot, or may not, be able to do their job.  Sub-Section (3) provides:

			"Where the employer has fulfilled the requirements of subsection (1), then, subject to...[matters which we do not need to go into] the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"

	It appears to us to be a just comment that all the cases to which Mr Patten referred us, and of course there are many others besides, are attempts by this Tribunal, perhaps on occasion by the Court of Appeal, to give guidance to employers in carrying out the duty which is cast upon them by Section 57 (as it now is) of the Act of 1978.  In some of them, of course, it is stated quite clearly that save in exceptional circumstances the Tribunal will expect the employer to have done this or done that.  

	We entirely accept that in this case, as in any other, the employer will be expected by the Industrial Tribunal to show that he has made reasonable enquiries about the medical condition and the likely prognosis.  He will also be expected to show, in this case most certainly, because there were no exceptional circumstances here that he has consulted reasonably with the employee, to see if the employee can help; either by taking alternative employment within the firm which is open to him, or by expressing an anxiety to return to work, or as it may be a reasonable view that he hopes to be able to return to work in a short while.  Here I have set out the evidence which the Tribunal heard about how a sedentary job was offered and refused, apparently out of hand, by the employee, although it was mobility that was affected by his osteoarthritic knee.

	When the fact that the employer was considering dismissal was made known to the employee, according to Mr Cartlidge he reacted in an abusive, perhaps even a hysterical way to what was being said.  So far from evincing an anxiety to return to work or giving any hope or encouragement to the employer that he might be able to return to work shortly, he spoke of going to the newspapers and exposing the employers to public criticism in that way.  Those were all matters which it was for the Industrial Tribunal to judge, of course, not for us.  The question is whether they were entitled to reach the conclusions which they did in the terms which they did.   

	A Tribunal is not bound to set out each and every matter which it takes into consideration.  What it is bound to do is to address its mind fairly to the issue; the cause of the dismissal having been shown, whether the employers have acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.  Each case must depend on its own facts.  Here the Industrial Tribunal were very conscious that it was not an in and out open and shut case.  It was one which gave them obviously some anxiety.  It was, they said, a finely balanced matter.  The Notes of Evidence are exceptionally lengthy; they clearly show that the Chairman took a most careful note of the evidence.  They referred to the authorities which were cited to them and it is perfectly clear they took those authorities into consideration and had these matters well in mind.

	It is true that the employers did not discover, with such efforts as they made, any definitive prognosis of when the employee was likely to return to work.  They had waited a considerable period and they were suffering in this small department of security, which is very important to any firm, serious difficulties, because of the burden that it was casting on their other employees.  Clearly a replacement would have shortly to be considered.  All these matters were considered by the Tribunal.  It is not up to the employer, of course, to act perfectly, or to act in a model way.  What is required of the employer is to act reasonably and it was that which they had to consider.

	Whether they were entitled to reach the conclusions which they did is, as Mr Patten said to us, a matter of law.  If there is no evidence, then they may not be.  But merely because the dicta of other Tribunals and other Judges, however eminent, have suggested certain courses and certain conclusions in other cases does not mean that those dicta have to be slavishly followed.  Indeed it would be misleading if they were, because the  Tribunal has first and foremost to direct its attention to the statutory requirement, and then and then only to the guidance with regard to that which has been offered by various Tribunals' decisions and Court of Appeal decisions.  

	Having considered it as carefully as we can, we have come to the conclusion that this Industrial Tribunal were entitled to reach the conclusion which they did; both with regard to the adequacy of the investigation by the employer and the opportunities for consultation which were given.  We can find no error of law in their decision and of course we are entitled to interfere with the decision only if we discover an error of law.  It may be, and this is simply an obvious comment, but I say it for the benefit of any lay person who is not quite familiar with this position, it may be of course that a different Tribunal would have reached a different decision as a matter of fact.  It goes without saying that as a hypothetical matter we ourselves, if charged with the duty of investigating this matter as a Tribunal of fact, might reach a different decision, that is entirely outside any relevant matter.

	We have to decide whether any error of law is shown here and we are not of the opinion that there is any error of law.  In those circumstances, we are grateful to Mr Patten for his thorough and very fair exploration of the issues, but we are bound to dismiss this appeal.