Elmbridge Housing Trust v O'Donoghue [2004] EWCA Civ 939

Case No A1/2003/2209[2004] EWCA Civ 939
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 16 June 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE MANCE
MR JUSTICE JACKSON
Between
ELMBRIDGE HOUSING TRUSTApplicant- v-
Between
KATHLEEN O'DONOGHUERespondent
(Computer- Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR J BOWERS QC (instructed by Trowers & Hamlins) appeared for ApplicantMR P GREEN (instructed by Messrs Rollingsons) appeared for Respondent
J U D G M E N T

LORD JUSTICE MANCE:

This

[1]is an appeal from the Employment Appeal Tribunal which by a decision issued 29th October 2003 allowed an appeal from a decision of the Employment Tribunal which was first issued on 12th June 2002 and then made the subject of extended reasons on 15th July 2002.[2]The applicant's claim was for unfair dismissal by the Elmbridge Housing Trust on 28th June 2001. She had for some years been their Housing Manager. That is a responsible position which her contract of employment specified required her to live on the same premises as she managed.[3]The background to the present issues is that the applicant had announced an intention to retire at the end of the year 2000 and had applied for free re- housing by the Elmbridge Housing Trust. This was a possibility in some circumstances but it was, in her particular circumstances, refused by the Trust and, although her resulting discontent with the Trust and its officers is not a matter directly before us, it is a part of the background to what follows.[4]It is in these circumstances that, rather than retire, the applicant evidently continued in employment. However, as from 14th March 2001, she was continuously off work, producing a series of medical certificates attributing this to stress or depression. As from 3rd May 2001 the Trust, not surprisingly, sought to investigate the medical situation with increasing urgency. It submitted a consent form to enable the applicant to be seen by the Trust's occupational health advisers, Medical & Industrial Services Ltd who would then report to the Trust, which would consider the position and whether it could in any way assist the applicant. The Trust asked for the return of this form by 10th May. At the same time the Trust expressed its regret that the applicant had required the Trust only to communicate with her through Mr Alan Morgan of the applicant's union, UNISON.[5]The form which was sent read as follows:
"In order to obtain a medical report from your medical adviser, the Company must have your consent in writing. This form is used to provide you with the necessary information and to obtain your consent. "
You should be aware that you have certain rights under the Access to Medical Reports Act 1998. These are reproduced on the reverse of this consent form for your information."[6]Then the actual consent part of the form read:
"I hereby give my consent to the Company's Medical Adviser to ..."
[7]At this point, there was a space followed by three numbered consents. The applicant wrote in the space "1 and 3 below" when she later completed the form. Consent 1 read:
"... obtain medical information from my GP/consultant concerning any aspect of my physical and/or mental health."
[8]Consent 2 was deleted when the applicant, when she later completed the form. It read: "2. release relevant clinical information in strictest confidence to a designated officer within the Company.[9]Finally, consent 3 read:
"3. release medical information held by MIS to any doctor involved in my care, or further assessment of my case."
[10]On 11th May, not by then having received any reply, the Trust wrote again, stating that it felt it had no option but to take the failure to complete the consent form "as a refusal to meet with our occupational health service". The writer Mr Scott Baxendale, Director of Housing Services, went on:
"I should also add that you have failed to contact me to explain your situation or account for any delay in returning the consent form. "
We would like to consider ways we can assist you in returning to work and may also need to consider whether any adjustments to your working conditions are necessary. "As I have previously explained, in order to do this we need to better understand the state of your health and extent of your illness."[11]Then he repeated his request for a medical report. He extended the time for this to 21st May 2001, and he gave a full explanation of the whole process, including a specific explanation of her right to see a copy of any report before the report was supplied to the Trust, and to withhold its supply if at that stage she did not wish such supply to occur.[12]Meanwhile, on 10th May, by a letter which crossed with the Trust's letter of 11th May, the applicant had in fact written repeating her refusal of direct communication. The Trust replied to that, extending the time for return of the medical form to 25th May. The applicant wrote on 19th May that she would be better placed to respond after seeing her own doctor the next Wednesday and after consulting Mr Morgan of UNISON, and she repeated her discontent about the Trust's refusal to rehouse her.[13]On 23rd May the Trust expressed its concern about the failure to progress its request for the form, and extended the time to 4th June 2001. It also offered dates for meetings with its Chief Executive regarding the applicant's re- housing request. On 24th May the applicant returned the form, having completed it in the manner which I have already described by deleting the central passage, which is the only passage in the form which would enable disclosure of information to the Trust. She gave as the explanation:
"I must withhold consent 2 ... until such time as a suitable 'designated officer' can be named by EHT [then the somewhat illegible letter seems to read, as a matter of guesswork] to comply with its terms."
[14]On 4th June 2001 the Trust through Mr Baxendale replied:
"You have returned Form MIS20 (our Occupational Health Provider Consent Form) having struck- through paragraph 2. Effectively, this means that should MIS obtain information from your GP, they are unable to provide us with any feedback, advice or guidance regarding your circumstances. Obviously, this would be a futile exercise and is unacceptable. With this in mind, I enclose another MIS20 form and am, once again, postponing the date by which I expect this to be fully completed and returned until 12th June. I will take your failure to comply with this reasonable request as a refusal. For information, in the context of your health, I am the 'designated officer'."
[15]The Trust went on to deal with the re- housing request and to make further offers of a meeting within the extended time, and then said this, through Mr Scott Baxendale in this letter:
"Kathleen, I feel that both the Trust and I have acted in good faith throughout this process. However, you should be aware that, after a great deal of consideration, this situation seems to be becoming increasingly untenable. I am conscious of the fact that you are not prepared to speak to anyone in the Trust, including me - - your Director of Service. I am forced to communicate with you, in writing, through your union representative. This is extremely cumbersome, time- consuming and entirely inappropriate in dealing with an employee health issue. Additionally, the number of postponements that have taken place, the inappropriate length of time that this process is taking, your apparent unwillingness to cooperate concerning obtaining clinical advice and the needs of the service are leading me to question your commitment to return to work. Obviously, Scheme Managers play a vital role, both to our tenants and EHT itself and I am conscious that this situation cannot carry on indefinitely. "
With this in mind, you should be aware that if I fail to hear from you by 12th June, Elmbridge Housing Trust will be forced to consider your future employment and whether it is appropriate to terminate your contract. On a personal note, I sincerely hope that it will not come to this."[16]The form enclosed with the letter of 4th June was in slightly different wording from the previous form, the Trust apparently having changed its standard form. It read:
"I agree to your processing personal and sensitive health related information about me applying for information from my own doctor or specialist treating me I wish/do not wish to see the report before it is sent to the doctor acting for my company. I consent/do not consent to attend an independent medical assessment which may include the taking of blood or the need for me to supply a sample of urine, or undergo other investigations, the test results of which will be interpreted by the doctor acting for my company. I consent/do not consent to the release of relevant clinical information in confidence to my employer. I understand that any advice given to my employer will be expressed in terms of my fitness for employment and/or my fitness to carry out my duties both now and in the future. I consent/do not consent to undergo an executive medical screening, the results of which will not be released to my company. A copy may be retained by the company doctor. I confirm I have read and understood the information about personal data and sensitive data. I understand that I will be given the opportunity to sign a fresh consent form when a new episode of my health occurs, that may affect my occupation."
[17]The relevant difference is this: that the part relating to disclosure of information simply reads:
"I consent/do not consent to the release of relevant clinical information in confidence to my employer. I understand that any advice given to my employer will be expressed in terms of my fitness for employment and/or my fitness to carry out my duties both now and in the future."
[18]There is no longer any reference to a designated officer.[19]Meanwhile, by another crossing letter on 4th June, the applicant had also written referring to the Trust's letter of 23rd May, and to the applicant's of 24th May, and had refused any meeting regarding her re- housing request. The Trust replied to this letter on 8th June, referring back to its letter of 4th June. On 9th June the applicant then said this:
"On advice, I am writing to let you know that I intend to wait for clarification from the Employment Tribunal, and on your response to mine of 4th June before making further reply to EHT. "
In this necessary interim, I must strongly refute the various adverse presumptions and EHT deadlines that you are now seeking to impose upon me."[20]The reference to the Employment Tribunal appears to be to a complaint she had made relating to her re- housing grievance, which was in fact dismissed by the Employment Tribunal as outside its jurisdiction on 11th June.[21]On 13th June the Trust wrote extending time for a reply to 22nd June, stating:
"This is the final postponement that I am prepared to make and, if I fail to receive your authorisation, I will be forced to consider your position based on the information available to me on that date. I should inform you that, at this time, the likely outcome of this will be the termination of your employment with Elmbridge Housing Trust on the grounds of capability."
[22]However, by yet another crossing letter, the applicant had in fact on the same day, 13th June, written an important letter - - important although it is not wholly legible in the copy before us. In it she either totally or entirely disagreed, whatever the word may be, with the first paragraph of the Trust's letter of 4th June. She insisted that the Trust already had the required form, and it seems that what she said in that regard was that it was a form which enabled the Trust "to proceed in part - - but have chosen not yet to do so".[23]Pausing there, that does not seem to me to be a reasonable reaction to the Trust's obvious point, which was that it was no use, indeed futile as the Trust said, to have a medical inspection if it was not going to lead to any advice to the Trust.[24]The applicant's letter went on, leaving out some illegible words:
"... deny causing any 'failure to comply' or 'refusal' that you seek to imply - - but, neither do I intend now to repeat and amend my ..."
[25]Somebody, in an attempt to make this legible, has written the word "contents", but it seems probable that it should actually be "consents". "... onto the new format that has been supplied."[26]That sentence seems to me significant in that it shows consciousness of the ability, again I would have thought obvious, to amend the new format, or to supplement it if she wished, but the applicant chose to stand her ground and decline to do that. Nevertheless, in the next sentence she went on after an illegible word or words:
"... this is a very reasonable response to events since I am only now informed that you are undertaking to be the 'designated officer' [and then there is an illegible word which may be 'which'] is only referred to in the original MIS20."
[27]In the next paragraph of the letter she made the point, so far as one can see, that the function of a designated officer implies specific responsibilities relating to confidentiality, et cetera, and that she now felt able to remove the previously reserved deletion of point 2 in the original form, and that the Trust should feel free to attach this letter, in other words the letter of 13th June, to the original signed form. Finally, she concluded by repeating that she strongly refuted the various unjust and adverse presumptions that the Trust was seeking to impose.[28]The Trust's later letter of 28th June, the dismissal letter, records the next step to have been as follows:
"I received a letter from you, dated 13th June, on 18th June. You seem to propose overriding your previous deletion from the MIS20, by attaching this letter and sending it to Occupational Health. Peter Wallop spoke to your UNISON representative by telephone on 18th June and explained that this was unacceptable for the following reasons: a) your letter was partially illegible, and b) he had spoken to the Occupational Health Provider and they refused to accept this and insisted upon a properly completed form. "
Peter Wallop fully informed your UNISON representative of the seriousness of this matter and followed their conversation, as agreed, with a fax stating that I required a properly completed MIS20 and no other alternative was acceptable."[29]That is a reference to the Trust's fax of 18th June, which read:
"I should mention that, due to the amount of photocopying/faxing that this document [that is the letter of the claimant of 13th June] has been through, it is now barely legible and cannot be used in the way in which I think you suggest. "
I find the final paragraph on page 1 to be ambiguous."[30]That is the paragraph referring to specific responsibilities and suggesting, as it appears, that the letter in question be attached to the previously sent form. "What I think you are saying is that you now wish to withdraw the deletion from the original MIS20. However, I cannot be sure. "For us to obtain clinical advice, I require a fully completed MIS20. No other alternative is acceptable. "As you are aware, the date by which I hope to receive this is 22nd June. If I fail to do so, the situation is as described in my letter of 13th June."[31]According to the Trust's letter of 28th June, and as Mr Green, representing the applicant before us, accepts in his skeleton, the applicant's response was to write on 20th June "insisting that [she] had complied with [the Trust's] request". It seems clear that no copy of any letter of 20th June was in fact before the Employment Tribunal. A copy was produced for the first time before us after we drew attention to its probable existence. It reads more fully:
"Regarding your recent telecoms with EHT and the related points in letters of 18th - - I must insist that my letter of 13th June fully explains my position and complies. "
However, in view of the continuing threat from EHT, I would ask you to consider referring the matter for legal advice at regional HQ."[32]Then the applicant went on to say that a clear original of the letter of 13th June was posted to EHT simultaneously with the copy received by EHT, and further:
"In these circumstances I am (today) supplying EHT by hand with a further clear copy (of 13th June) - - which is intended unambiguously to remove the reservation of consent 2 in the previously signed MIS20 - - sent to EHT on 23rd May. "
I feel this clarifies my response to Mr Baxendale's letter of 18th June - - and to avoid duplication I am copying this letter to him for information."[33]So again she stood on the position expressed in her letter of 13th June that there was no question of completing or indeed adapting any other form; the Trust must make do with the original form plus her letter of 13th June, and that, in her word, "complied". On 25th June the applicant sent another letter enclosing a GP's sick note and saying:
"In addition, I am awaiting further appointments (next Friday 29th June and Thursday 25th July) in anticipation of some essential investigations and possible surgery to follow."
[34]The sick note, dated 25th June, stated that she should refrain from work for two months due to depression. So the Trust was faced with a further period of as long as two months from the end of June, she having already been off work since mid March. On 28th June the Trust then wrote its letter dismissing her:
"Further to my letters of 13th and 18th June and Peter Wallop's recent conversations with Alan Morgan (UNISON), I regret to inform you that I am terminating your employment with Elmbridge Housing Trust for the reason of incapability. You will, of course, be paid your contractual notice entitlement. "
I should inform you that I have only taken this decision after a great deal of consideration and deeply regret that it has come to this. However, given the following, I feel that I have been left with no alternative. "You have persistently refused to meet with senior officers of the Trust, including the Chief Executive. "I feel that you have failed to cooperate with my investigation into your health. You will recall that I first proposed approaching our Occupational Health Service to you in my letter of 3rd May, approximately seven weeks after you first sent in a sick note stating that you were suffering from stress. You will also recall that you did not make any contact with the Trust to discuss your condition over this period or respond to our approaches. Indeed, you requested that we only contact you through Alan Morgan, your UNISON representative. Additionally, I should mention that you failed to respond to this proposal. "On 11th May you were sent a Request to Obtain a Medical Report from your GP. It would appear that our letters crossed and I therefore repeated this request on 15th May. You responded by informing me that you did not consider that you were in a position to respond due to a future Doctor's appointment. "On 23rd May, I wrote to you once more, explaining why I needed competent medical advice and repeating my request for authorisation to approach your GP. Additionally, I offered you the choice of three times/dates to meet with myself and the Chief Executive to discuss your re- housing application. I also offered you the opportunity to be accompanied by your UNISON representative. You responded on 4th June, stating that you would only meet with us if a 'legally qualified representative' accompanied you. You were aware that the Trust had previously taken the position that this was not acceptable. "On 25th May I received a completed Occupational Health Referral Form (MIS20) from you. However, you had deleted the paragraph giving permission for EHT to be informed of the result of the medical consultation ensuring that the form was unusable. "I responded to you on 4th June explaining the situation and attaching another MIS20. I also repeated the offer of a meeting and raised the issue that EHT may become forced to consider your future employment and whether it may become appropriate to terminate your contract. "In case our letters had crossed again, on 8th June I confirmed receipt of your 4th June letter and referred you to my 4th June letter. "You stated that you would not communicate with the Trust until 'clarification from the Employment Tribunal'. "I wrote to you on 13th June extending the time by which I hoped to receive a completed MIS20 and informing you that, should I fail to receive this, I would be forced to make a decision concerning your future based upon evidence available at that time. I made you aware that the likely outcome would be termination of your contract. "I received a letter from you, dated 13th June, on 18th June. You seemed to propose overriding your previous deletion from the MIS20, by attaching this letter and sending it to Occupational Health. Peter Wallop spoke to your UNISON representative by telephone on 18th June and explained that this was unacceptable for the following reasons: a) your letter was partially illegible, and. b) he had spoken to the Occupational Health Provider and they had refused to accept this and insisted upon a properly completed form. "Peter Wallop fully informed your UNISON representative of the seriousness of this matter and followed their conversation, as agreed, with a fax stating that I required a properly completed MIS20 and no other alternative was acceptable. "I received a letter from you on 20th June insisting that you had complied with my request. Unfortunately, I am unable to accept this assertion. "Should you with to appeal my decision, please write to Peter Morton, Chief Executive within 14 days from the date of this letter."[35]The very last paragraph of that letter offering an appeal was a voluntary offer. There is nothing in the Trust's procedures which provided for an appeal in a case of dismissal for capability as distinct from dismissal for disciplinary reasons. Evidently the applicant at some point indicated in response that she would like to pursue such a voluntary appeal. In the Trust's letter of 13th July it said:
"Given that procedures need to be agreed, I raised the issue [that is, in a conversation with Mr Morgan on the telephone] that it was possible an appeal hearing may be heard outside the time period indicated in procedural guidelines (although we will certainly endeavour to ensure that this is not the case). You understood this and did not seem to feel that this was too much of a problem assuming our good faith."
[36]The procedural guidelines there referred to were guidelines indicating a 10- day period for an appeal in the case of a disciplinary dismissal. However, the Trust postponed any appeal on 5th September 2001, owing to its having changed its legal advisers, and the Trust does not appear to have pursued the matter with speed thereafter since the union, not having heard further, wrote on 18th October 2001 asking about alternative dates.[37]Meanwhile, on 27th September 2001, the applicant had applied to the Employment Tribunal. Quite what happened to the suggested appeal, and whether there was any further correspondence about it, does not appear from the material before us but on 7th March 2002, at a preliminary hearing before the Employment Tribunal, the applicant was offered a choice between an informal appeal hearing or an early Employment Tribunal hearing, and through UNISON she chose the latter.[38]The applicant's application of 27th September 2001 to the Employment Tribunal read as follows:
"I was dismissed by letter on 28th June 2001. The letter said the reason was incapability. I had been on sick leave, and was asked by my employer to complete an Occupational Health Form but was not informed which 'designated officer' the information would be released to and I was also shortly to see my GP. Once I was informed who the 'designated officer' was, and I had seen my GP, I returned that form. Meanwhile (although my employer decided to send me a differently worded form) I did not refuse employer- access to my medical information - - as was implied. Prior to receiving my dismissal letter, I was not invited to a disciplinary hearing. The dismissal letter (+ subsequent enquiries) did not record reasons for 'incapability'. The employer failed to follow the disciplinary & capability policy. I was not given a notice period for my dismissal."
[39]The application was in certain respects factually inaccurate, in particular insofar as it asserted that she had completed the required form once she was informed who the designated officer was. That was not the case. She had only returned a partially accepted form and had done this before learning who the designated officer was.[40]Before the Employment Tribunal it was common ground that the reason of dismissal was capability. The Employment Tribunal summarised the parties' respective submissions in paragraphs 4 and 5 of its extended reasons:
"The Applicant's case. "4. The Applicant submitted that the dismissal was unfair primarily because Mr Baxendale did not have the best quality information in relation to the Applicant's health. They also stated that the need for the employer to have the work done was not in issue and not something which was considered by the Respondent. They questioned whether it was reasonable to proceed without medical evidence and that the decision to dismiss fell out with the range of reasonable responses that a reasonable employer could have. Further the Applicant submitted that the decision was made too quickly and relied on the fact that the Applicant was better within three months of dismissal and that the Respondent did not consider any alternative other than dismissal and did not take into account the Applicant's length of service. "
The Respondent's case "5. The Respondent submitted that the reason to dismiss was fair as the Respondent had done everything possible to try and find medical information about the Applicant and to consult with the Applicant as to her medical condition. However the Applicant did not cooperate and did not communicate directly with the Respondent at any time from the time she went sick in March 2001. In essence, the Respondent asks what more could they have done."[41]It then stated its conclusions as follows:
"6. The Tribunal finds that the reason for dismissal was capability. The Tribunal also find that the Applicant did not cooperate for whatever reason, with the Respondent and in relation to their request for a medical report and consultation which was a reasonable request. This process started on 3rd May 2001 when Mr Baxendale wrote to the Applicant (page 17) asking the Applicant for her consent to arrange a medical report. Despite this letter, and the attempts of Alan Morgan the Branch Secretary of the Elmbridge branch of UNISON the Applicant did not complete the medical form. Accordingly a further letter was written on 11th May 2001 in which the Respondents made it clear that they would like to consider ways that they could assist the Applicant in returning to work and whether there may need to be some adjustments to her working conditions as a result of illness. Still the Applicant did not respond. "7. The Tribunal noted that the Respondent did allow the Applicant to have her Trade Union Representative with her although this was not a formal disciplinary matter. The Tribunal also find that the Respondents by their letter of 4th June 2001 and their letter of 14th June 2001 made it clear to the Applicant that they required a completed medical consent form otherwise they would have to make a decision on her continued employment on the basis of the evidence which they had before them. "8. The Tribunal concludes that the Respondent did all that they could to elicit the information from the Applicant but the Applicant's total lack of communication and her continued refusal to provide medical information left them with no alternative but to make a decision based on the facts which they had before them. The Tribunal find that given the particular circumstances of this case namely the lack of consent for any medical records the period of three and a half months from the date the Applicant went off on sick leave to the date of her dismissal was reasonable. The Tribunal further find that the decision to dismiss was within the range of reasonable responses which a reasonable employer could make. Accordingly the dismissal was fair and the Applicant's claim is dismissed."
[42]The matter went to the Employment Appeal Tribunal where the applicant had different legal representation, by counsel who now appears before us, Mr Green. The Employment Appeal Tribunal, in setting aside the Employment Tribunal's decision and in substituting its own finding in favour of the applicant, gave these as its reasons:
"6. By the amended Notice of Appeal this decision is criticised as being wrong in law and perverse. It is said that the Employment Tribunal failed to distinguish between conduct and capability issues and failed to have proper regard to the fact that the Respondent had not followed its own proper procedures including as to an internal appeal against the dismissal. The Respondents argue that there was sufficient evidence before the Employment Tribunal for the conclusions set out in the extended reasons to have been properly reached although it is conceded that to say that there was in the relevant period a 'total lack of communication' by the Appellant was incorrect, at least in terms of communications in writing. "7. We are satisfied that this Tribunal decision cannot stand. There is a clear contradiction between the finding in paragraph 6 of the extended reasons that the dismissal was for capability and the conclusions in paragraph 8 which clearly relate to a dismissal for misconduct, that being the alleged failure of the Appellant to cooperate with the Respondent in facilitating a medical assessment. The conclusion of the Employment Tribunal that the Appellant did maintain a continued refusal to provide medical information is in our view not warranted on the only proper interpretation of the correspondence between the parties between May and the dismissal. "8. Before the dismissal there was no engagement in any of the disciplinary or the capability procedures of the Respondent. Subsequently [sic] to the dismissal there was no provision of an appeal. Any waiver of the appeal procedure months later by the Appellant's representative cannot in our view affect the Appellant's entitlement to such a procedure at the proper time. The appeal must therefore be allowed and the decision of the Tribunal quashed. "9. In most instances after such findings of perversity this Employment Appeal Tribunal would remit the case for a rehearing before a differently constituted Employment Tribunal. This is the course urged upon us by the representative of the Respondent in the event of this appeal succeeding. We have however been persuaded by Counsel for the Appellant that this is an exceptional case where it is appropriate for us to substitute our findings. We are satisfied that all facts relevant to the dismissal can be found in the exchange of letters between the parties in the period already referred to between May and June. "10. We are satisfied that the only proper interpretation of that correspondence is that the Appellant, after an initial reservation in order to ensure that her medical condition should only be made known to an appropriate person within the Respondent, gave the required consent to be medically examined and for her medical records to be disclosed. We are satisfied that the reason for dismissal can only be categorised as conduct, that being the Respondent's view that she had not so cooperated as regards the medical investigations. This being so what followed did not comply with any fair procedures. There had been no disciplinary hearing, no appeal hearing and the dismissal could not satisfy the test as to fairness under Section 98 of the Employment Rights Act. The employer did not act reasonably in treating it as a sufficient reason for dismissing her. Dismissal could not in all the circumstances be within the bands of reasonable response. We therefore find that the dismissal was unfair and we remit the case to an Employment Tribunal for a remedies hearing, that Tribunal to be differently constituted from the one which heard this case. At any such hearing it will of course be open to the Respondent to raise any issues regarding contributory conduct."
[43]Against this somewhat lengthy background 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 2001, was within the range of reasonable responses which an employer in the circumstances could adopt.[44]Three legal propositions were advanced by Mr Bowers QC for the Trust which are, I understand, common ground. First, the issue before us in the Court of Appeal relates to the validity of the original Employment Tribunal decision. See Tran v Greenwich Vietnam Community [2002] ICR 1101. Second, the Employment Tribunal's decision should be read generously and not overturned merely because of infelicitous or inappropriate statements which were looking at the matter in the round, of an inessential nature. See Meek v City of Birmingham District Council [1987] IRLR 250, where the court quoted a previous statement by Donaldson LJ in UCATT v Brain [1981] IRLR 225, at 227, to the effect that:
"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."
[45]Third, an appeal only lies against an Employment Tribunal decision on the ground of error of law. Mr Bowers also referred us to authorities indicating the difficulty of concluding that there has been an error of law in circumstances where no apparent error exists in an Employment Tribunal's express directions of law. It is still of course possible to argue that the Employment Tribunal must have erred in law, because no reasonable Employment Tribunal, properly directed, could have reached the conclusion it did on the admitted, accepted or uncontroversial facts before it, but this type of adversity involves an extreme conclusion which neither the Employment Appeal Tribunal nor this court should readily conclude to have represented the actual position.[46]In this connection I would refer to what was said in O'Kelly v Trusthouse Forte plc [1983] ICR 728 at page 761, to Gilham v Kent CC (No.2) [1985] ICR 233 at 240 and 243, and to Yeboah v Crofton [2002] EWCA Civ 794 at paragraphs 93 to 95.[47]I turn to the Employment Appeal Tribunal's criticisms of the Employment Tribunal's decision which have been repeated before us. The first relates to the statement that there had been a "total lack of communication". In context it seems to me, however, that what the Employment Tribunal meant was that there had been a total lack of direct communication, that being what it referred to elsewhere in the reasons when it used the word "communication". The Employment Tribunal had of course referred to and set out in some detail the indirect communications in the form of the correspondence, which proved so cumbersome and led to a series of crossed letters, and which in the Employment Tribunal's assessment involved the "continued refusal by the applicant to provide medical information" to which the Employment Tribunal went on to refer. This therefore seems to me an example of an infelicitous phrase which viewed in overall context, cannot indicate that the Employment Tribunal was approaching the matter perversely.[48]The second is the suggestion of a clear contradiction between paragraphs 6 and 8 of the Employment Tribunal's reasoning. I do not agree that there was any such conflict. The continued refusal to provide medical information left the Trust with no alternative but to make a decision on capability based on the limited information before it. The Employment Tribunal, in its paragraph 8, was meeting the applicant's own argument, recited in its paragraph 4, that the Trust did not have sufficient information on 28th June 2001 to make any medical assessment of capability and that it should have waited longer. The response to that was, quite appropriately, to refer to the course of events since the Trust had first sought medical information.[49]The third, and this is the probable crux of the Employment Appeal Tribunal's decision, is found in the last sentence in paragraph 7 of the Employment Appeal Tribunal's reasons. Effectively, after reading the correspondence, the Employment Appeal Tribunal felt that it could conclude that it was perverse for the Employment Tribunal to regard the Trust's response of dismissal on 28th June as within the range of reasonable responses which an employer might adopt in the circumstances faced by the Trust. This was both a ground on which the Employment Appeal Tribunal felt that it could interfere with the Employment Tribunal's decision, and also the ground on which it felt that it could substitute its own conclusion rather than take the usual course, identified in Dobie v Burns International Security Service (UK) Ltd [1985] 1 WLR 43, of remitting the matter to the Employment Tribunal.[50]In my view, the Employment Tribunal's decision cannot be described as perverse and the Employment Appeal Tribunal was wrong to set it aside. The applicant's attendance on site to look after the Trust's tenants was of vital interest to the Trust. It was entitled and bound to wish to clarify the position and to see if it could find some solution, as it said, by assisting the applicant as well as itself. This attempt was greatly complicated by the applicant's refusal to communicate directly. The Trust was bound to set some limit to the process, but still gave numerous extensions. The applicant never signed any document which could enable the Trust to get the required medical information to form any better view, and the Trust was entitled to conclude, on the limited material it had on 28th June 2001, that there was incapability.[51]In the light of the evidence before the Employment Tribunal, the applicant never, with respect to paragraph 10 of the decision of the Employment Appeal Tribunal, gave the "required consent". As the Trust explained orally to UNISON, and in writing by its letter of 18th June,(a) the document which the Trust thought, but was at least initially not sure, contained a written consent was not sufficiently legible to be sure about that; and(b) the Trust's independent medical health advisers quite properly insisted on a properly completed form.[52]As to (a), if we now take into account the fact (which strictly we probably should not, but which is before us) that legible copies of the letter of 13th June appear likely to have been sent to the Trust on 19th June, then I accept that that point disappears, but it is the second point which represents the central problem. Much store was placed before us on the claimant's concern that information should only be disclosed to an acceptable designated officer. The revised form - - the only one which the applicant had in June, having used the old form to send her reply on 24th May - - did not, as I have pointed out, expressly refer to a designated officer.[53]However, when sending the second form on 4th June the Trust had confirmed that Mr Scott Baxendale, who was the author of the correspondence with the applicant, was the designated officer, so indicating to the applicant that the Trust regarded that concept as having continuing relevance in relation to the second form that it had sent. Further, he was, as the applicant herself indicated, a suitable and acceptable designated officer. Mr Green suggests that in the light of the applicant's letter of 4th June the Trust's response in the telephone conversation, and in its letter of 28th June, was still inappropriate because the Trust insisted on a form which contained no reference to a designated officer. It seems to me that that is a complete mischaracterisation of the position. It is clear that this was not the Trust's concern or insistence. All that the Trust wanted was a properly signed document. There was and is no reason to think that the Trust was now insisting, for the first time, that there should be no designated officer or that information should be disseminated more widely than to a designated officer, or that the Trust would not, if asked, have agreed a corresponding clarification.[54]However, the applicant, as I have pointed out, had made clear already that she was not prepared to alter the new form for whatever reason. It may be that the initial illegibility of the applicant's letter of 13th June meant that the applicant's point about the designated officer in it did not get home, or fully home, to the Trust when the letter of 13th June was first seen. If we take account of the fact that the letter of 13th June was apparently re- sent in a more legible form, then it may also be said that the text of the covering letter of 19th June itself draws attention away from any such point by asserting, wrongly in my view, that the letter of 13th June fully complied with the Trust's request.[55]If the applicant was concerned about signing the new form on the ground that it did not expressly limit disclosure to a designated officer, all she needed to do was reply to the Trust to that effect, or to amend the new form by inserting a reference to Mr Scott Baxendale as designated officer. Instead, as I have said, she wrote first her letter of 13th June, making clear that she was not prepared to amend the contents of her previous statements on the new form. That, as I have said, indicates an awareness on her part of the possibility of amending the new form but a refusal to do so. Then she followed that by her letter of 20th June insisting, again wrongly, that she had complied with the Trust's requests and then by a letter of 25th June referring to further medical investigations with her own private medical team which, if they had been allowed to take place, would have involved yet further time and would not have led to disclosure of information to the Trust (unless of course she had chosen voluntarily to make such disclosure, which seems unlikely).[56]Mr Green criticises the Employment Tribunal's reference to the applicant not co- operating "for whatever reason" in paragraph 6 of its extended reasons. He submits that the Employment Tribunal failed to identify or take account of the applicant's concern that any information disclosed should be confined to an acceptable officer, which was, he submits, a reasonable concern, that was continuing during June 2001.[57]It is true that the Employment Tribunal might have addressed this aspect explicitly, but the reason why it did not do so seems very likely to me to have been that the applicant's application did not put her case on this basis but on an incorrect factual basis, and that this particular aspect was not focused upon before the Employment Tribunal. The Employment Tribunal's recital of the submissions before it indicates as much. On that basis there could be no cause whatever to criticise the Employment Tribunal. But, even apart from that I would be satisfied that there is nothing in the Employment Tribunal's use of the phrase "for whatever reason" which could make its conclusions perverse or otherwise undermine its decision, and that, had the Employment Tribunal addressed the point overtly, as I have, it would have reached the conclusion I have indicated.[58]Mr Green submitted that the Employment Tribunal's decision was generally, as well as in this specific respect, lacking in reasons. He referred us to Tran v Greenwich Vietnam Community. The requirement to give reasons must relate to the case put before the Tribunal which, as I said, was summarised in its paragraphs 4 and 5.[59]In my view the Tribunal's reasoning met those submissions and was sufficient in context. It follows that in my view there was nothing in the Tribunal's decision or reasoning to justify the Employment Appeal Tribunal in setting that decision aside, still less in taking the unusual course of substituting its own opposite decision.[60]With regard to the Employment Appeal Tribunal's reasoning I would only add that paragraph 10 appears to me unjustified insofar as it asserts that the reason for dismissal was conduct. It was common ground before the Employment Tribunal that the reason was capability. The only issue of conduct arose, as I said, from the applicant's case that the Tribunal should have waited longer and had more medical information before concluding that the applicant was incapable. It was not open to Mr Green, as counsel for the applicant, to submit before the Employment Appeal Tribunal, as it appears he did, that the Employment Tribunal had wrongly applied section 98 of the Employment Rights Act 1996, and had confused dismissal for conduct and for capability in circumstances when capability was, before the Employment Tribunal, the admitted ground of dismissal.[61]The Employment Appeal Tribunal's referred in paragraph 8 to the absence of any disciplinary or capability proceedings, and returned to this aspect in paragraph 10 in the context of its erroneous conclusion that dismissal was for misconduct. It is accepted by Mr Bowers that the reasonableness of an employer's conduct post- dismissal might sometimes have a bearing on the reasonableness (viewed overall) of the dismissal, but here the applicant was not wholly deprived of the internal appeal which the Trust had voluntarily offered her on 28th June 2001. There was merely some delay by the Trust in setting this appeal up, and that by itself could not, so far as I can see, possibly have made the dismissal unfair.[62]The applicant was offered a choice of a voluntary appeal or a speedier Employment Tribunal hearing, and chose the latter on 27th March 2001. The Employment Tribunal correctly spoke of her, therefore, as having waived any voluntary internal appeal process, and clearly did not regard the delay, or the circumstances in which this occurred, as making the dismissal unfair even if that was a point upon which any focus was laid before them at all, about which I have some doubt. In that regard the Employment Tribunal's view cannot be categorised as perverse.[63]In summary, the applicant chose to have the Employment Tribunal look at the fairness of the dismissal in the light of the original decision alone, rather than have the possible benefit of a two- stage process, the only disadvantage of which might have been some further delay. The whole concept of an internal appeal arose from the Trust's voluntary offer, and the Trust's failure to pursue it properly did not cause any prejudice or put the applicant in any worse position than if the offer had never been made in the first place.[64]It follows that, in my judgment, this appeal should be allowed and that we should restore the Employment Tribunal's decision.

MR JUSTICE JACKSON: I agree.

LORD JUSTICE WARD: I also agree. The challenge to the Employment Tribunal's decision could only be made on a point of law. The points of law are either that their decision was not sufficiently reasoned or that it was perverse. In my judgment it was plain from paragraph 9 of their decision what the reason was. I read one sentence:

"The Tribunal find that given the particular circumstances of this case namely the lack of consent for any medical records the period of three and a half months from the date the Applicant went off on sick leave to the date of her dismissal was reasonable."
[67]That spells it out quite clearly. She was asked for unequivocal consent on a designated form and she did not give it. That is the reason for it. This was a matter well within the province of the Employment Tribunal to decide. I would have decided it the same way. That does not mean that the Employment Tribunal were right, it simply means that it cannot be said they were so plainly wrong as to have been perverse.[68]I too would allow the appeal and restore the decision of the Employment Tribunal. We have already dealt with the question of costs and the appeal is therefore allowed. The respondent is to pay the appellant's cost which we have assessed in the sum of £10,000.

Order

appeal allowed.

Cited in 18 later judgments

and 9 more of the most senior