Appeal No. UKEATS/0009/11/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 11 October 2011

Before
THE HONOURABLE LADY SMITH
MR J KEENAN MCIPD
MR R THOMSON

DUNDEE CITY COUNCIL	APPELLANT

MR BENJAMIN SHARP	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A HARDMAN
(Advocate )
Instructed by:
Dundee City Council
Legal Services
21 City Square 
Dundee
DD1 3BY
	
For the Respondent	MR D DEVINE
(Solicitor)
Muir Myles Laverty Solicitors
Meadowplace Building
Bell Street
Dundee
DD1 1EJ	

SUMMARY
UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal

Unfair dismissal. Long term sickness absence. Tribunal erroneously requiring that employers follow a particular procedure re further medical enquiries before determining on dismissal. Tribunal wrongly taking account of length of service when considering reasonableness of investigation.  Remit to a fresh Tribunal to consider, on facts already found, whether or not the Respondent could reasonably have been expected to wait longer.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an appeal by a local authority employer from a Judgment of the Employment Tribunal sitting at Dundee, registered on 13 December 2010, Employment Judge M Kearns, finding that the Claimant, a joiner, was unfairly dismissed.

2.	For convenience, we will continue referring to parties as Claimant and Respondent.

3.	The Claimant was represented by Mr Devine, solicitor before the Tribunal and before us. The Respondent was represented by Mrs J Bell, solicitor, before the Tribunal and by Mr Hardman, advocate, before us.

Background
4.	The Claimant was employed by the Respondent as a joiner for thirty five years prior to his dismissal on 23 September 2009.  The reason for his dismissal was a reason relating to capability, within the meaning of section 98(2) of the Employment Rights Act 1996; he had been absent from work since 9 September 2008 on account of depression and anxiety and, as at 23 September 2009, he was not fit to return to work.

5.	The information before the Respondent at the time of their dismissal can be summarised as follows.  As from on or about 9 September 2008, the Claimant was signed off work by his GP as suffering, initially “nervous debility” and thereafter “depression and anxiety”.  His GP signed him off for eight weeks at a time until mid September 2009, when he was signed off for four weeks.  None of the GP certificates were before the Employment Tribunal.  None of them stated that they were the final certificate.  As at the time of the Claimant’s sickness absence, the relevant statutory form of GP certificate was the ‘Med 3’ form, which required a GP to state whether the certificate was a final one or not.

6.	The Claimant began receiving counselling, from a company called Insight Counselling, in October 2008 and was still receiving it when he was dismissed.

7.	He was referred to “OHSAS” an independent NHS occupational health service used by the Respondent, in January 2009.  The initial report to the Respondent from OHSAS advised that the Claimant was receiving the correct medical treatment and advice but there had been no improvement in his symptoms. The author of the report, a Senior Occupational Health Nurse also stated that she would envisage him being absent for at least another eight weeks.  He was reviewed by an OHSAS nurse on 26 March, 13 May, and 8 July and reports were provided to the Respondent each of which was in similar terms to the original report, namely that the Claimant was unfit for work, was receiving the correct treatment and advice and that he would be absent for at least another eight weeks. The Respondent’s Administration Team Leader, Mrs Hutchison enquired of Ms Barr of personnel whether the Claimant should be reviewed by a doctor but was advised that it was for OHSAS (the independent occupational health adviser) to make that decision.  After receipt of each OHSAS report, the Respondent invited the Claimant to a meeting to review his progress.  One such meeting took place on 12 August and the Claimant was accompanied by his union representative. At that point, the Claimant had a certificate from his GP which was due to expire on 14 September.  The Claimant explained that he was on sleeping tablets and antidepressants (he had been taking the latter since October 2008); he did not feel he could return to work whilst he was on antidepressants, although his GP had not said that.  The dosage of antidepressant medication he was taking was 40mg i.e. a high dose.  The upshot of the meeting on 12 August was that he was, by letter, given a return to work date of 14 September 2009.  The letter advised him that “any period of absence is not conducive to the efficient operation of the service”.  He was told he could appeal against that date.  He did not do so.

8.	The Claimant was reviewed again by OHSAS in September 2009.  On 7 September 2009 he was seen by an occupational health nurse who advised that he remained unfit to work, that she could not predict a date for his return to work and that she had arranged for him to be seen by an occupational health physician.

9.	The Claimant was, accordingly, seen by Dr Jon Spencer, a consultant occupational health physician, on 11 September and in his report dated 14 September, he advised:

“Mr Sharp has not yet fully recovered but his health is improving. He is probably not fit to return to work next week but I do not consider him to be permanently incapacitated and would expect that he would be able to return to work within the next one to three months. I would be happy for him to return to work as a Joiner when his GP issues a final certificate.”

10.	The Claimant did not return to work on 14 September.  He was asked to attend a meeting on 23 September by letter dated 16 September which made it plain that he was at risk of being dismissed on account of his continued lack of fitness for work.  The letter stated:

“As previously advised this meeting has been arranged to review your absence since the meeting on 13th August 2009, when you were advised that if you remained unfit for work beyond 14th September 2009 consideration may be given to dismissal. I can confirm therefore that consideration will be given to terminating your employment at the meeting.”

11.	The Claimant attended the meeting, which was chaired by Mrs Hutchison, accompanied by his trade union representative.  At the meeting, as found by the Tribunal at paragraph 42:

“The claimant said he was still attending his GP and his counsellor on a weekly basis. His current medical certificate would run out on 12 October. He said that his sleeping tablets were making him feel sleepy during the day and that he was going to ask his GP if he could reduce them. He said that he was still on 40mg antidepressants. He reported that he had a hospital appointment on 1 October regarding a problem with his heel which was sore when walking and standing. He said that he was trying everything possible to get back to work but that he was not ready to come back. The claimant stated he was not any better, nor any further forward since the last meeting.”

12.	On the basis of the information before her, Mrs Hutchison believed that the Claimant was not going to return to work in the short term or in the foreseeable future.  She read Dr Spencer’s report as indicating that the Claimant’s fitness to return to work would be conditional on his GP issuing a final certificate; we can see why she did so.  She felt that there was “no daylight at the end of the tunnel” (Tribunal: paragraph 43).  At that point, the Claimant had been absent from work due to ongoing illness for over 12 months and he was no longer in receipt of sick pay.  She decided to dismiss the Claimant and confirmed her decision in a letter dated 23 September 2009 which included:

“I referred to our previous meeting on 12th August 2009 and my letter dated 13th August 2009 when you were advised that, if you remained unfit to work on 14th September 2009, I would give consideration to terminating your employment with Dundee City Council.
You confirmed that you continue with medication but were not ready to come back at this time as you were not feeling any better.
Having considered the information which you presented and OHSAS reports, I decided to dismiss you from your post of Joiner with effect from Wednesday 23rd September 2009 on the grounds of capability.”

13.	The Claimant appealed and his appeal was heard by Mr Ken Laing on 28 October 2009. The Claimant was still not fit to return to work.  There is no indication that there had been any improvement in his condition.  That is, on a date which was some six weeks later than Dr Spencer’s report and about halfway through his 1–3 month period to which he referred, the Claimant had not improved and had not been able to return to work.  The Tribunal appear to have recognised that this presented a difficulty for them – it could not be said, by the time of the appeal, that the Claimant’s health had improved or that there was any prospect of the Claimant returning to work within the first half of Dr Spencer’s time scale; on the face of matters, that lent support to the Respondent’s overall view of there being no ‘light at the end of the tunnel’ or  immediate prospect of his doing so and pointed to the outcome of any medical enquiry at the time of the decision to dismiss having been unlikely to result in prediction of an early date for return to work.  The Tribunal try to deal with the difficulty by commenting at paragraph 83 that the Claimant was very distressed as a result of the dismissal and it ‘could’ have caused a recurrence of his symptoms. However, they plainly had no evidence before them that his dismissal was or could have been the cause of his illness as at the time of his appeal as opposed to it being what they did have evidence of and made findings about namely that he had a long term depression and anxiety condition that had begun in September 2008 and persisted thereafter.  That leaves their approach to resolution of this acknowledged difficulty problematic.

14.	The Claimant was accompanied at the appeal hearing by his union representative. Four points were put forward: first, that the content of Dr Spencer’s letter had not fully been taken into account.  Second, that sufficient consideration had not been given to the Claimant’s length of service. Third, that sufficient consideration had not been given to ill health retirement. Fourth, that the Respondent had not provided the Claimant with adequate support.  It was not suggested that the Respondent ought to make or have made more enquiries whether of a medical nature or otherwise.

15.	The appeal was rejected: Mrs Hutchison knew Dr Spencer’s advice prior to the meeting on 23 September, had received a copy of his letter during the meeting and adjourned to consider its terms; she had given it proper consideration – Dr Spencer had given no guarantee that the Claimant would return to work in the 1-3 month time scale referred to and that uncertainty was reinforced by the fact that the then current GP certificate was an “open” one for four weeks.  Mr Laing did not regard length of service as relevant.  Ill health retrial was not an option as Dr Spencer had found that he was not permanently incapacitated.  As for support, OHSAS had consistently confirmed that the Claimant was receiving the appropriate treatment and he was also in receipt of ongoing counselling; there was nothing more that the Respondent could do.

16.	Mr Laing concluded that the Claimant’s sickness absence had been ongoing for a significant period and there was no immediate prospect of a return to work in sight; a line had to be drawn.  Had it been the case that the Claimant was going to be fit to return to work within one month, he would have decided differently, but that was not the position.

17.	During the Claimant’s absence from work, the Respondent used temporary staff who were paid at the same rates as permanent staff to carry out work which would otherwise have been done by him; they had a “temporary labour agreement” with recognised unions which facilitated their being able to do so.  It was stressed, on behalf of the Claimant, that once his sick pay had run out the Respondent did not require to incur additional wage costs. It is, however, self evident that they were incurring costs in relation to his referrals to OHSAS and organisational ‘cost’ in relation to the monitoring and review of the Claimant’s position and in relation to the arrangement of temporary labour.

Relevant law
18.	In terms of section 98(2) of the Employment Rights Act 1996 where an employer shows that an employee is dismissed for a reason relating to his capability to perform the work for which he was employed, the dismissal is potentially fair.  Section 98(4) of the 1996 Act then comes into play and it provides:

“98 (4)…….the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including size and administrative resources of the employers’ undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee,
(b)  shall be determined in accordance with equity and the substantial merits of the case.”

19.	Put shortly, an employment tribunal has to consider whether the employer’s conclusion that their employee was not fit to return to work was one which he was reasonably entitled to reach and if so, whether or not the decision to dismiss was, in all the circumstances, reasonable.  In cases where dismissal follows a period of long term ill health, it will usually be the case that at the time of the decision to dismiss, there is no real issue as to whether or not the claimant is unfit as at that date.  Rather, the issue becomes whether or not it is reasonable for the employer to decide, in effect, that matters have gone on long enough and the stage has been reached at which he can reasonably decide that the time has come to take the employee ‘off his books’. The observations of LJ Mance, as he then was, in Elmbridge Housing Trust v O’Donoghue [2004] EWCA Civ 939 are relevant:

“43………..I turn to the law which can be taken quite shortly as it was not essentially in dispute. The basic test for incapacity arising from ill–health is “whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer.” See Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, paragraph 14. The basic question which the Employment Tribunal had to address was whether the Trust’s conclusion that there was incapacity, and its decision to dismiss on that ground on 28th June was within the range of reasonable responses which an employer in the circumstances could adopt.”

20.	In cases of ill health, the employer requires to assess the implications of that ill health so far as the employee’s ability to return to work is concerned.  He will, obviously, need to speak to the employee and, usually, also consider medical evidence – hence the views expressed by Phillips J, as he then was, sitting in this tribunal, in the case of East Lindsey District Council v Daubney [1977] UKEAT/7/77/2004:

“18. 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. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according the circumstances to consult the employee and to discuss the matter with him and to inform themselves upon the try medical position, it will be found in practice that all that is necessary has been done.”

21.	As discussed in the case of DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09, at paragraph 33, we do not consider that that is to be read as requiring a higher standard of enquiry than is required in a misconduct case nor as laying down any particular procedures that require to be carried out nor as detracting from decisions to dismiss being management decisions not medical ones.  It is also worth noting that in the East Lindsey District Council case, the industrial tribunal had been very critical of the employer’s failure to obtain more medical evidence before the decision to dismiss but as explained by Phillips J, this tribunal considered that the tribunal were asking too much of the Council:

“…it seems to us on the whole that the Industrial Tribunal required overmuch of the District Council when saying that they should have demanded a detailed medical report, and should have questioned Dr Haigh about it.”

22.	We would add that, for the reasons we explain below, length of service is not relevant when considering whether or not, to use the language of Phillips J, the employer has carried out “such steps as are sensible”.

Discussion of the Tribunal’s Reasons
23.	The Tribunal found that the Claimant was dismissed for a potentially fair reason namely a reason relating to capability (s.98(2) of the 1996 Act).  They then proceeded to consider whether or not dismissal of the Claimant for that reason was fair or unfair (s.98(4) of the 1996 Act).

24.	They began that second stage by asking themselves whether or not the decision to dismiss was “within the range of reasonable procedures” that a reasonable employer might have used (paragraph 77).  They found that the dismissal was unfair because, in their view, the procedure adopted was not within the range of reasonable procedures open to the Respondent.  They were wrong to do so; s.98(4) fairness is not simply a matter of asking whether or not there was what might be called a procedural failing.  Depending on the circumstances of the particular case, such a failing may or may not render the dismissal unfair.  They also approached matters on the basis that “..fair procedure is particularly important in ill health cases” (paragraph 77). That is not correct.  Fairness of procedure is no more important in an ill health case than it is in other cases.

25.	The Tribunal were critical of the Respondent for failing to:

“…request any information from OHSAS or the GP concerning whether the line provided might be the last one or when the GP envisaged the claimant would be fit to return.” (paragraph 50)

26.	They expand on their criticism at paragraph 82 where they state:

“…When it comes to medical certificates the final certificate is simply the last one. A GP may or may not say on the certificate that it is the last one. If the issue of a final certificate from the GP was such an important consideration to the respondent that they regarded it as a qualification to Dr Spencer’s estimate of the return to work time, it would have been a simple matter to have OHSAS check with the GP whether the 4 week line issued on 14 September might be the last one and if not, when he envisaged a final certificate would be issued. A decision to dismiss on medical grounds will not be reasonable unless the employer has all the relevant facts which are either known or could reasonably be discovered at the time the decision is made. Instead of making straightforward enquiries to ascertain those facts the respondent made assumptions which were inconsistent with their own medical advice. Even if those assumptions arose partly from the claimant telling them at the meeting on 23 September that he was no further forward, Dr Spencer had said that the claimant’s health was improving. Where there is inconsistency between the claimant’s understanding of his condition and the medical advice no reasonable employer would disregard the advice and go ahead and dismiss an employee with 35 years’ service without first clarifying the true medical position.”

27.	We make the following observations.  First, as above noted, the Med 3 form in use at the relevant time had a section for General Practitioners to specify whether or not a sickness certificate was a final one; the Tribunal had no basis for approaching matters on the basis that the GP certificate in question (which they had not seen) would have been unclear on that matter.  A final certificate is not ‘simply the last one’; it has implications in respect of an employer’s common law duty of care and may have implications for their employer’s liability insurance cover.

28.	Secondly, there is no absolute rule that, in the case of sickness absence, dismissal will be unfair unless the employer has sought and obtained all “relevant” facts.  That begs the question of what, in any particular case, is relevant and that is something as to which reasonable employers might reasonably differ.  Further, the overall fairness of a decision to dismiss is not determined by reference to whether or not there was something else that an employer might have done that might have produced a different result and to approach matters as if there was such a rule involves the risk of too high a hurdle being set for the employer to overcome.

29.	Thirdly, the Tribunal’s conclusion that the Respondent proceeded on the basis of “assumptions” does not seem fair given their findings as to what the Claimant himself said about the state of his health at the meeting on 23 September.  The Respondent drew inferences regarding the likelihood of his returning to work in the near future but the drawing of inferences from primary evidence is not illegitimate and is not the same as making assumptions.

30.	Fourthly, there is no rule that an employer is not entitled to accept an employee’s own account of the state of his health yet that is the import of the Tribunal’s approach.  Indeed, whilst the Claimant denied having said at the meeting on 23 September that he was not any better and no further forward, as the Tribunal explain at paragraph 61, they accepted that that is what he said; there was no suggestion that he was wrong about that or that he did not understand his own condition.  Whilst the Tribunal refer to the Respondent disregarding medical advice, Dr Spencer’s report stated that the Claimant was not fit for work and was far from clear as to prognosis.  It did not contain “advice” that was ignored.

31.	Finally, the Claimant’s length of service was not relevant to the assessment of the Claimant’s state of health.  The reasonableness of an employer’s investigation in an ill health case is not to be judged by reference to the employee’s length of service.  An employer is not obliged to carry out a more detailed investigation in the case of a long serving employee nor is he entitled to carry out only a casual investigation in the case of an employee whose length of service is short.  An employee of only, say, two years standing would, in the Claimant’s position have been entitled to the same level of investigation as in the Claimant’s case and the Claimant was not entitled to extra investigation by reason of his 35 years service.  The Tribunal were wrong to conclude as, at paragraph 82 they did, that the length of the Claimant’s service meant that further investigation was required.

32.	Although the Tribunal had concluded that the dismissal unfair for procedural reasons, they went on to consider whether dismissal was within the range of reasonable responses. They list twelve factors as being circumstances that the Respondent ought to have taken into consideration. Those factors include, again, criticism of the Respondent for failing to make further medical investigation; the Tribunal’s view that they should have carried out further investigation plainly weighed heavily with them in their consideration of whether or not dismissal was within the range of reasonable responses.  The second item on the list was that the Claimant was a “very long serving employee with a previously good attendance record.  He had 35 years’ service” and was “highly regarded.” The Tribunal clearly regarded it as an important factor when considering, in the context of whether or not dismissal was within the range of reasonable responses, what medical enquiries should, in their view, have been made by the Respondent, given that they repeatedly refer to it (see: paragraphs 1, 82, 86(ii), 90 and 91) and go as far as to say that in deciding what enquiries to make “no reasonable employer would fail to take proper account of length of service”.  That was, for the reasons which we have explained, an irrelevant factor.

33.	The Tribunal also include some matters in  their list of factors in respect of which we  make certain observations: that the Claimant had had a set back in his state of health following an investigatory meeting in July 2009 (in connection with the Respondent’s discovery that the Claimant had been charged with a serious criminal offence in September 2008 which remained hanging over him until May 2009 but had not disclosed that fact to the Respondent) but we note that whilst the Tribunal found that the meeting was not handled by the Respondent as “sensitively” as it might have been, there is no question of the Respondent being blamed for the set back in the Claimant’s health and the relevance of that factor is not entirely clear – other than, perhaps, to point to a reason for the Claimant’s health not having improved; that the Respondent assumed that the GP’s certificate was not a final one without checking with him whether or not that was correct, a matter in relation to which we would refer to our comments above; that the Respondent had the temporary labour agreement with the unions to which we refer above and that the Claimant was no longer in receipt of salary.  No account was taken of the OHSAS and organisational costs that would accrue so long as the Claimant was employed by the Respondent.

The appeal
34.	For the Respondent, Mr Hardman presented two grounds of appeal.  First, the Tribunal had erred in that they had imposed a higher duty of investigation on the employer than the law required.  The appropriate steps for an employer to take when considering dismissal in respect of long term sickness absence was to consult with the employee and in one way or another to take steps to discover the true medical position: East Lindsey District Council.  No particular procedure was required. It may not, depending on the circumstances, even be necessary to obtain a medical report. The employer requires only to carry out a reasonable investigation into the state of the employee’s health, to consult with the employee and to reach a reasonable view as to whether he can be expected to wait longer before deciding whether or not to dismiss: DB Schenker Rail (UK) Ltd v John Doolan; Spencer v Paragon Wallpapers Ltd [1976] IRLR 373.   The Tribunal here had sought to impose too high a duty on the Respondent.  They sought to require them to go behind the Claimant’s assertion that he was no better, that he was not ready to come back, and that he was no further forward since the last absence management meeting.  That was more than reasonable investigation required and arose because the Tribunal were seeking to impose too high a duty probably because they had focussed on an analysis of procedure which was not the correct approach.

35.	Secondly, the Tribunal had erred in having regard to the Claimant’s length of service.  It was irrelevant.

36.	In response, Mr Devine largely sought to re-argue the case, going through the background facts and submitting that the Respondent should have consulted with OHSAS or Dr Spencer at the time of their decision to dismiss, regarding a final GP certificate. He submitted that the Tribunal was entitled to hold that the Claimant was unfairly dismissed.  He accepted that the relevant test was that set out in Spencer v Paragon Wallpapers as referred to in the Elmbridge Housing Association case.  He also accepted that the Claimant’s length of service was not relevant and that there were “difficulties” with the Tribunal’s judgment in that regard.

37.	In addition, Mr Devine sought to argue that the Respondent had not complied with their own absence policy although he accepted that that did not form part of the Tribunal’s reasoning. It was not clear in what respect he considered that they had not done so.  Mr Devine referred, in support of his submissions, to two first instance tribunal decisions – G S Allan v F W Farnsworth Ltd [1974] IRLR 370 and S Crampton v Dacorum Motors Ltd [1975] IRLR 168.  Both turned very much on their own particular factual matrices which were quite different from those in the present case and we did not find either to be of assistance.

Decision
38.	We accept that both grounds of appeal are well founded for the reasons we have explained above.  The Employment Tribunal set the bar too high in concluding that the fact that there was a further enquiry which could have been made by the Respondent (with, on the evidence, nothing to point to any more accurate an indication of the likely date of the Claimant’s return to fitness for work being able to be made by OHSAS or the Claimant’s GP) rendered the dismissal unfair.  By adopting a technical and over analytical approach the Tribunal failed to stand back and ask whether the Respondent had consulted with the employee (to which the answer was ‘yes, repeatedly’), had carried out a reasonable investigation and had a reached a reasonable view on the issue of whether or not it was reasonable for them to wait longer before deciding whether or not to dismiss.  Further, they were plainly influenced in their decision on whether or not there had been a reasonable investigation by the fact that the Claimant was a long serving employee which, as we have explained, was not relevant to that issue.  Their decision that the Claimant was unfairly dismissed cannot, accordingly, stand.

Mr Thomson would add the following observation. He agrees that length of service is not relevant to the reasonableness of an employer’s investigation in the case of a dismissal on ill health grounds. However, in his opinion, length of service and conduct and capability during that service is a factor which a reasonable employer would be expected to take into account when considering whether or not to dismiss.  Counsel referred to no authority to the contrary.

Disposal
39.	We will, in the circumstances, pronounce an order upholding the appeal and setting aside the judgment of the Employment Tribunal.

40.	As regards further procedure, we will accede to the course of action proposed by Mr Hardman (to which Mr Devine did not demur, in the event that we were minded to uphold the appeal).  That is, we will remit the case to the Employment Tribunal to determine, on the basis of the facts found and in the light of parties’ further submissions, whether or not the Respondent could reasonably have been expected to wait longer before dismissing the Claimant.  In the event of their answering that question in the negative, they are to find that the Claimant was fairly dismissed.  In the event of their answering it in the affirmative, they are to find that he was unfairly dismissed and then go on to determine remedy.

41.	The remit will be to a freshly constituted Tribunal as we consider that the stress laid by this Tribunal on the length of the Claimant’s service gives an impression of their having such sympathy for his position as would, bearing in mind the requirements of Article 6 ECHR, make it inappropriate that the remit be to them.