Appeal No.	 EAT/951/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MRS T A MARSLAND
MR T C THOMAS CBE

MR W CLACK	APPELLANT

SOUTH LONDON BUSES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J SUDDABY
(of Counsel)
Messrs Streeter Marshall
Solicitors
74 High Street
Croydon CR9 2UU	
For the Respondent	
MRS A DINGLE
Legal Executive
Messrs David Wagstaff & Co
Solicitors
Treviot House
182-192 High Street
Ilford
Essex IG1 1LR	

	JUDGE J HULL QC:  We have all found that this case caused us a good deal of concern.  It is a case concerning Mr Clack who, unhappily, became ill after being with the South London Buses, as they are now called, or their predecessors, since 26 September 1984, when his employment began.  He was a bus driver and operated driver-only buses and we have no doubt that that was a job which imposed a good deal of stress upon him.  It appears that on 15 May 1995 or the day before, there had been a very untoward incident when he had the responsible task of driving a bus which was full of school children.  Their behaviour was, apparently, disorderly.  That may be a weak word for it.  It may have been something like a riot.  At any rate, it was too much for Mr Clack.  He was affected very seriously by what had happened and, as it was put, he went sick with stress.

	In view of what has happened, I hope I shall be forgiven for going into a little detail in what happened thereafter, so far as disclosed by the documents which we have.  We have not seen the notes of the evidence.  We do not know exactly what was said about all these steps but we have got the documents and through those we can trace the outlines of what happened thereafter.

	After he had gone sick with stress, there was a medical certificate, which is at page 2 of the documents bundle and the doctor said on 16 May that he should refrain from work for one month.  He was suffering from stress and something else which none of us can read.

	On 30 May Mr Johnson, one of the managers, wrote to Mr Clack and said:

“I see from my records that you have been absent from work since 16th May suffering from stress.  I hope this letter finds you well on the way to making a full recovery.
The purpose of this letter is to make arrangements for you to visit the garage so that we may discuss whatever problems you may be having at present, and for you to update on what progress your condition is making.
I have, therefore, made an appointment for you to attend a meeting in my office ... on Friday 2nd June ...”

That apparently did not take place.  The next page of the bundle says something to the effect that the letter was left with a neighbour but shortly afterwards Mr Bell recorded, apparently on 8 June, that he had telephoned Mr Clack who was going to see his GP the next day to discuss the matter.

	Then on 9 June there was the interview.  The manager, whether it was Mr Ball or Mr Johnson, saw him and it is rather difficult unfortunately, to read the writing but he told the manager:

“Particularly over the last six months he has found the job too stressful.”

So it is not a matter of sudden origin.  The manager goes on to record:

“Clack was seen by his GP today and informed that he would be seen by a counsellor one day next month.
At this present time Clack feels he will not be able to return to drive.”

Then, of course, there is the question of an alternative job:

“We would ask him to consider taking employment with SLT.”

I think that is a Surrey company which is an associated company.

“I have discussed LTS procedure and also that, depending on the counsellor’s opinion, I would arrange for an alternative work  [illegible word].  ...  
Clack has promised to keep me updated on his progress.”

Also on 9 June there was a medical certificate, just as Mr Clack had said, this was advising him to refrain from work for three weeks and it appears that there the doctor is saying “anxiety” which, of course, often goes with depression and stress.

	The next document at page 7 is a letter of 30 June:

“I am writing to you on behalf of your Operating Manager Mr Chris Johnson.  He sends his regards and hopes that you are making steady progress ...
He requests that you attend an interview with him on Friday 7th July ...”

	At page 8 is the medical certificate of 4 July.  Now the doctor says that he is advised to refrain from work for 6 weeks.  He is suffering from depression and anxiety.

	On page 10 is a letter:

“I refer to our meeting on Friday 21st July 1995 when you informed me that you were unable at this stage to give me positive date for your return to work.
You also informed me that you had an appointment to see your GP on Tuesday 15th August 1995.
I can confirm that an appointment has been made for you to see a Manager on Friday 18th August 1995 ... and at this meeting you will be required to give a positive date for your return to work.
This date must be by Saturday 2nd September 1995, failing this your employment with the company will be terminated on medical grounds.”

	At page 11 there is a request to the Personnel Manager asking if there is any suitable alternative employment within South London Transport or Leaside Buses and, unhappily, it appeared that there was no alternative (page 12 on 28 July from the Personnel Manager).  On 15 August 1995 there is a medical certificate saying that he would be off work for two months with stress and anxiety.  The position was that, putting it very broadly, medical certificates had given longer periods, as time went by, of the likely disability resulting from this illness caused by stress and anxiety.  Clearly it was a medical condition and not simply something which was a matter of mere preference or anything of that sort.

	At page 14 of the bundle there is the interview with Mr Warlow.  Mr Warlow took the interview because the other manager, who might have taken it, was absent.  This was on 18 August, according to the note.  There is Mr Warlow’s note at page 14 and there is another note of it by Mr Clack himself at page 44.  Mr Warlow’s note, again, deals with various matters.  Mr Clack says an appointment with Dr Langley has been arranged for 23 August:

“Dr Langley stated that he would only be able, at best, to state that Clack could resume when told to by his GP and as the current certificate went until 4.10.95 the need to see him is to some extent obviated.”

Dr Langley was the company’s doctor and, accordingly, in those circumstances it was not considered necessary by the company, and this is a very important matter so far as the Appellant is concerned, for the Appellant to see the company doctor.  The note goes on:

“Clack states that his GP has indicated that his condition is slightly improved but that a resumption at work is not possible and to visit him again in early October 1995.”

That was what he told the employers and they, therefore, determined on a medical termination.  The letter which was written is at page 15:

“I refer to your meeting with the Operating Manager from Norwood Garage on Friday 18th August 1995 ... and confirm that as you were unable to give him an exact date for your return to work, he informed you that your employment with South London Transport would be terminated on medical grounds with effect from Saturday 2nd September 1995.”

There is a right of appeal, the right was exercised and Mr Clack was represented by his trade union officer, Mr Scanlon, and the appeal was heard by the General Manager, Mr Scowen.  Others were present, including of course Mr Clack and, amongst other things, Mr Scowen, in accordance with the company’s guidelines, asked Mr Clack if he was on any medication.  He replied, “No” but he had been on medication.  Mr Scowen asked Mr Clack what medication he had been taking and Mr Clack said that he was unable to remember.  Amongst other things, the trade union officer said that Mr Clack had thought that he was entitled to 26 weeks’ full pay before any meetings regarding dismissal would take place.  He added that nobody had brought the correct details to his attention.  A little lower down the same page, Mr Scowen asked if Mr Clack had any idea of when he would be fit.  Mr Clack replied “No” but he would be seeing his doctor on 10 October.  Mr Scowen asked Mr Clack if he would be able to resume work after his next appointment, three weeks away, but Mr Clack said he did not know.  He was not a doctor.  Mr Scowen took the decision to uphold the dismissal.  

	There was an application to the Industrial Tribunal.  Mr Clack complained of unfair dismissal.  He complained that the company guidelines had not been complied with and that is, indeed, one of the grounds of the appeal to us but it is now conceded that that ground is not maintainable.  The IT3, the employer’s response, said that he had been dismissed on medical grounds and the Industrial Tribunal sat on 19 March at London (South) under Col. Brayden, with two industrial Members, to hear the application.

	They set out some of the facts, not in as much detail (as relates to the documents) as I have done but they said that:
“The history of the matter in a nutshell is that the Applicant went sick on 15 May 1995 and sickness certificates gave the reason as stress.  The immediate cause of the stress was an incident in which school children on the Applicant’s bus virtually ran riot.  Various telephone calls and letters passed between the parties.  On 18 August 1995 the Applicant was interviewed by Mr Warlow.  He confirmed that he could not give a date when he would be able to return to work.  He was dismissed by reason of incapability with effect from 2 September 1995.”

They then dealt with the appeal, very shortly.

	As I say, this history shows that the employers were throughout concerned about Mr Clack; that they were throughout keeping in touch with him, and they throughout acted, of course, on the medical notes, which were supplied.  Mr Clack throughout said he could give no date when he could return.  That, to deal with it separately, is a matter of some criticism.  How could he give a date for his return?  As he said himself, he is not a doctor.  The Company guidelines say that the manager should, when he sees an employee who is long-term absent, ask this question and it may not be fair to complain if the man says that he cannot reply.  Indeed, that would be quite wrong.  But to say that it is an unfair question is going, we think, too far.  The fact is that it might make a big difference to the employer if the employee were able to say, “Well, I feel a lot better and I intend, at any rate, to return on such-and-such a date if my doctor allows me”.  He might be wrong about that but it is, it seems, a fair question to ask, although a difficulty in answering it is not blameworthy.

	The Tribunal held that it was the long-term illness of Mr Clack which was the cause of his dismissal and they set out further details of the interview.  They say that he was represented and they set out the two-month certificate to which I have referred.  They said:

“Mr Warlow telephoned the company doctor, who said there was no point in his seeing the Applicant, who had not expressed dissatisfaction with his GP’s opinion.  The decision to continue the progress interview was for Mr Warlow.
9.	At the interview the Applicant made it clear that he had no intention of returning to his doctor within the two-month period of his current medical certificate.  Nor did he suggest that his doctor be asked to supply a final prognosis.”

Then we come to the paragraph which is much criticised:

“We find as a fact that the Respondent took such steps as were sensible to consult the Applicant and to inform itself as to the true medical position.  The evidence on this came from the Applicant’s side and the nature of the illness was never in doubt.
11.	It was essential for the Respondent to deal with the situation with reasonable despatch.  Payment of sick pay is expensive.  Cover is required for absent drivers at overtime rates.  This is strictly controlled because of competition within the industry and tender bids for work are closely related to the costs of the tendering company.  The level of service is monitored and there is a warning procedure which can lead to the ending of the contract.  All these matters were considered, quite rightly, by Mr Warlow.  Accordingly, we find that the Respondent acted reasonably in requiring the Applicant to set a limit on his continued absence.  The Applicant was quite properly warned that he would be required to give or forecast a return date within a limited period.
12.	As indicated above, there were no vacancies for suitable alternative employment for the Applicant and we find that reasonable enquiries were made in this respect.
13.	The procedure adopted by the Respondent, which included representation and appeal, was, we find, reasonable in all respects.
14.	Our finding in general is that the Respondent acted reasonably, as that term is defined in section 57(3) of the Act, in dismissing the Applicant on grounds of incapability.  For completeness, however, we refer to the Applicant’s appeal.  The Applicant was represented by Mr Scanlon, a full-time union official.  The principal ground of appeal was that the Applicant, it was said, was entitled to six months’ full pay and six months’ half pay as a long-term sickness absentee.  This ground was misconceived.  [In other words, the guidelines and the contract had been misread by the union official, if he had read them at all.]  The position was properly explained by Mr Scowen, namely that there was a management discretion.  The alleged entitlements were maximum entitlements.  Mr Scowen asked the Applicant again if he could give a return date.  He said he could not .”

After all that, the Tribunal said that they could not leave the case without expressing some sympathy with the Applicant.  He had obviously suffered a real trauma in the incident which gave rise to his absence and his wife spoke movingly on his behalf.  

“However, their combined evidence served in the end to reinforce our finding that the Applicant was indeed incapable of returning to duty, a fact which he did not really deny.”

	So those were the findings of the Tribunal and Mr Suddaby addressed us on the following points.  He said that paragraph 10 was a misdirection by the Industrial Tribunal.  He says the medical certificates gave no clue of the prognosis and sensible steps, he said, must, save in exceptional circumstances, include attempts to obtain a prognosis and he cited to us East Lindsay District Council v Daubney [1977] ICR 566.  This was a different case in many ways, but it also involved incapacity, long-term through illness:

“The employee, a surveyor, was absent from work for long periods because of illness [and they set out the other facts]. ...  On the employee’s complaint of unfair dismissal, an industrial tribunal found that although his inability to perform his duties was a reason justifying dismissal within [the then statutory provisions] ...  nevertheless, the manner of the dismissal was unfair in that the employers had failed to obtain a full medical report before dismissing him and that they had dismissed him without giving him the right to discuss the situation with them or to seek an independent medical opinion. ...
On the employers’ appeal:-
Held, dismissing the appeal 
(1)  that, although it was not the function of employers or of industrial tribunals to act as a medical appeal tribunal to review advice received from medical advisers, the decision whether or not to dismiss an employee was not a medical question but had to be taken by employers in the light of available medical advice which should be requested in such a way as to enable them to make an informed decision;  that a report merely stating that an employee was unfit to carry out his duties and should be retired on the ground of permanent ill-health was verging on the inadequate, but, in the circumstances, the report would have been sufficient to have enabled the employers to act on it after they had discussed the situation with the employee
(2)  That except in exceptional circumstances employers should take such steps as were sensible in the circumstances to consult the employee and inform themselves of the true medical position before dismissing him on the ground of ill-health;  that, since the employee was not consulted, the dismissal was unfair.”

	So that is the ground of that decision; that there had been a failure to consult.  In the present case, of course that cannot be said.  There was more than one consultation with the employee, but what is said by Mr Suddaby is that, save in exceptional circumstances, employers should attempt to obtain a prognosis.  And what is said, against that of course, is that it was for the Industrial Tribunal to say whether the steps which the employers had taken, bearing in mind all the circumstances including the employers’ own situation, which they describe, were reasonable or not.  Here, there were a number of medical certificates, each stating that the Applicant was ill and giving increasing periods during which he could not be advised to go to work.

	So the employers had consulted their own doctor, who “poured cold water” (if I can use the colloquialism) on the suggestion that he should examine the Applicant.  It was clearly a long-term illness.  Should the employers have said, “We simply must have a prognosis here, either from the general practitioner, who is treating, or at any rate who is examining (from time to time) Mr Clack, or from our own doctor?”.  We think, all of us, that the answer is that most employers would say that.  Certainly, a great many would.  They had, after all, waited a long time, perhaps it was not asking too much to ask them to wait a little longer, or they could have asked for such report earlier.  But of course that must be, not a requirement of law, but a question of fact and we think that the suggestion that there is an error of law disclosed in the circumstances is not made out.

	It is (we think) not an invariable requirement and on all the facts of this case we think that the Industrial Tribunal was entitled to hold that the employers had done as much as was reasonably required, with a view to obtaining the medical view of their employee, notwithstanding that other employers might have done more and, we think, probably would; notwithstanding that other Industrial Tribunals, even, might have reached a different conclusion on that matter; it was open to the Industrial Tribunal to reach that conclusion.

	Then Mr Suddaby said that paragraph 10 of the decision is perverse and he embarked on an analysis of it which said that, in effect, the Tribunal were allowing the Applicant to have the burden of proof put on him; that the Industrial Tribunal were saying, “Well really, it is up to him to show what is wrong with him”.  That, said Mr Suddaby, is clearly wrong in law and they exemplify that, says Mr Suddaby, by saying, “The nature of the illness was never in doubt”.  We think (with all respect to Mr Suddaby) having heard Mrs Dingle on this subject, that that is putting too much of a gloss on this and that Mr Suddaby, to make good his contention, had to paraphrase very generously and invite us to draw inferences about this.

	We think that it was perfectly open to the Tribunal to say, “The nature of the illness was never in doubt”.  Nobody, not the employers’ own doctor, had called the nature of the illness into doubt, nor do we think that the Industrial Tribunal were saying, “The employers were entitled to put the burden of proof on the employee”.  We think that, having regard to all the evidence, it was quite clear that the employers had made a good many enquiries, and it was for the Tribunal to say whether they had done enough in that direction.

	Then Mr Suddaby said, repeating part of his argument on perversity, that there was an error of law; that here there was the onus being put on the Applicant; and he referred us to Mitchell v Arkwood Plastics (Engineering) Ltd [1993] ICR 471.  I do not need to refer to that; it was a very different case.  Quite plainly there is no onus on the employee.  

	When one looks at the Act (and it is, after all, the Act which the Industrial Tribunal and we are bound to return to every time) it is for the employer to show the reason and that was made out - long-term illness was the reason for this dismissal - and where the employer has shown the reason, 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, 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.

	Parliament has not laid down any guidelines.  Of course, this Tribunal has frequently indicated guidelines as to what an employer will normally do.  They are not rules of law.  Employers themselves should have guidelines and this employer did.  The allegation that the employer departed from its own guidelines is not persisted with.  As I have already indicated, it says nothing, I am afraid, to say that we ourselves might have reached a different decision or that a different Industrial Tribunal might have reached a different decision in this case.  It was this Industrial Tribunal who had the responsibility of deciding whether the employers had acted reasonably.  They heard evidence which we have not heard.  They were able to form a view of the sincerity and thoroughness of witnesses whom we have not seen and heard.

	In those circumstances, notwithstanding the great concern (as I say) which this case has given to us and the fact that we have no doubt whatever that an employer will normally, in such circumstances, want to call for a medical report containing a prognosis, precisely as Mr Suddaby said, nonetheless, we have come to the conclusion that, on the facts of this case, the employers, who did a good deal (as I have said) were entitled to ask the Tribunal to say that they had acted reasonably and the Tribunal were entitled, certainly not bound, but entitled, to say that the employers had acted reasonably and therefore to dismiss the complaint.  As I say, we inevitably share the sympathy of the Tribunal itself for Mr Clack, but we are unable to say there is any error of law disclosed by this appeal.

	The appeal must therefore be dismissed.