Lowe v British Railways Board [1991] UKEAT 574_89_1311

EAT
Lowe v British Railways Board
[1991] UKEAT 574_89_1311 · 1991-11-13
MR JUSTICE KNOX: The appeal before us is brought by Mr Stanley Lowe against a unanimous decision of the Industrial Tribunal sitting at Sheffield on the 4 and 5 of September 1989, that Mr Lowe's application for unfair dismissal was dismissed. There was a nominal order for costs but no issue arises on that. The decision was sent to the parties on the 5 October 1989.This was a case of a very long-term, sickness based, poor attendance. Mr Lowe who was some 60 years of age when he was dismissed on 4 August 1988, had been working for British Rail since January 1975 and had a very poor attendance record due to ill health.There were several medical examinations. Two formed an important part in the proceedings before the Industrial Tribunal in the sense that they were specifically mentioned. The first two were not dealt with. The medical examinations were also conducted in the context of a long series of warnings that were given to Mr Lowe by his superiors that if his record of attendance did not improve, he might well be dismissed. The two significant medical examinations, in fact, occurred on 13 April 1987 and 23 February 1988.There was before the Industrial Tribunal a bundle produced by the Respondents, British Railways Board. It is unfortunate that the need for that bundle which was as we see it legitimately referred to in argument on behalf of Mr Lowe, was not appreciated because no effective advance notice was given of the intention to do so. There appears to have been an administrative mistake in submitting the bundle. However it would not be right, in our view, to ignore these documents which were not in dispute before the Industrial Tribunal.The doctor who examined Mr Lowe, was a Dr Thompson, on all four occasions, both the earlier two and the two later ones which were referred to by the Industrial Tribunal. In his report of the examination on the 13 April 1987 Dr Thompson filled in a form which provides for a variety of possible alternatives under the question of "fitness" category. The form reads:-

"I certify that the above named has been examined and my opinion is:"

and then there are various things about his vision until one comes to the Fitness Category where there are several categories that are put forward as possible answers.
"Fitness Category - Fit Normal Work (F) /Temporarily Fit Normal Work (F) /Fit Alternative Work (F) Fit present Work (F) Temporarily Unfit (U) /Unfit (U)"
What appears to have happened on this occasion is that Dr Thompson put a ring around "Fit Normal Work", crossed it out, ringed "Fit Present Work" and wrote "Please see letter".

The letter reads, disregarding irrelevancies, as follows:-

"I note further that he has previously been referred for medical examination on several occasions in connection with concern about his level of attendance at work.
As a result of my examination today I would confirm information previously reported that he is of below average physique and level of fitness. I would again confirm that there is, however, no evidence of any underlying medical condition which of itself would give rise to above average sickness absence."The matter came back to him because the Area Mechanical & Electrical Engineer wrote on 5 February 1988 pointing out there had been further absences for sickness and saying:-
"I am still extremely concerned with Mr Lowe's sickness record (copy attached), and he has now been interviewed by myself following previous interviews with my T.M.E."
Contrary to what was said in that letter a copy of Mr Lowe's sickness record was not included. The doctor wrote his reply on 23 February 1988, again leaving out any irrelevancies:-
"Despite my telephone request via your representative, no detailed account of the reasons for his absences has been submitted. I am unable therefore, to comment on his absence record or give any indication as to whether or not this is justifiable.
My findings on examination are as previously reported in that Mr. Lowe is of below average physical fitness and poor physique and is only capable, I assume, of relatively light work. Because of his poor physical condition I suggest that his motivation is adversely affected, but there is no evidence of any underlying medical condition which of itself would give rise to a high level of sickness absence."It was pointed out in the course of the argument by Mr McMullen on behalf of Mr Lowe, that there are several differences between those two doctor's letters. Notably and most important, there is the addition in the latter of the two letters of the words "and is only capable I assume, of relatively light work".Mr Lowe was warned again after that second relevant interview that his attendance record had to be improved otherwise his superiors would have to consider dispensing with his services with British Rail. In fact, his attendance record did somewhat improve after that but it started to deteriorate, in a way which is not at the end of the day relevant, not very long before he was ultimately dismissed as I have said on 4 August 1988. From the 11 July 1988 he was absent for one of the two reasons which had figured very largely in his earlier record of absences. The most frequent one was cervical spondylosis which sometimes was coupled with arthritis of the neck. The other reason for long-term absence was bronchitis which caused an absence notably of 115 working days between October 1986 and April 1987.A Mr Billmore was appointed as Mr Lowe's superior in June 1988 and as was his duty he looked at the records of those who were working below him and he decided that there were two people who were off sick for a longer period of time than he considered normal. One of them was a Mr Riley of whom the Industrial Tribunal said that it had heard that he was retired early on the grounds of ill health and the other was Mr Lowe.As I have mentioned Mr Lowe went off sick with his spondylosis in early July.
".... Mr Billmore waited until 4 August - which happened to be a date when Mr Lowe came in to collect his wages - and without prior warning called Mr Lowe into a meeting, explained to him the position about his poor record, asked him for his comments and then when he was not satisfied with such comments dismissed him -the letter of dismissal having been pre-written before the actual hearing that took place."
That is a quotation from the findings of the Industrial Tribunal in paragraph 7 of their decision. There is appended to that this sentence:
"There was subsequently an appeal which was conducted fairly by Mr Walters but the result was the same."
The Industrial Tribunal heard evidence from Mr Lowe's General Practitioner. There was an issue whether or not a letter that this gentleman, Dr Keith, had written reached British Rail containing a recommendation that Mr Lowe should receive consideration for early retirement on the basis of ill health. The Industrial Tribunal found, and there is no appeal to this, that no such communication reached British Rail or the responsible persons in British Rail and it was not disputed but that in those circumstances the Industrial Tribunal was right in the view which it took that it would not be right in judging whether or not the response of British Rail was a reasonable one to have regard to what had been written in a letter that never reached them. I therefore pass over what that doctor said, more especially as the gist of his diagnosis, namely that there were two conditions that Mr Lowe suffered from, is fairly clearly established in evidence. What seems to have been the subject matter of potential difference of opinion was how serious those two conditions may have been.The Industrial Tribunal then set out the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978, which do not need repetition in this Tribunal and reminded themselves that it was not their function to substitute their decision for British Rail's but to apply the well-known test of whether the decision to dismiss was within the range of reasonable responses that British Rail could have taken on the evidence that they had before them.The Industrial Tribunal recorded as there having been three points taken before them with regard to the fairly readily apparent flaws in the procedure that Mr Billmore adopted on 4 August when he saw Mr Lowe and handed him the dismissal letter. The points that are identified as having been argued before the Industrial Tribunal are these:
"....(a) not appreciating that Mr Thompson's second medical report might be flawed because of the lack of the list setting out the type of illness that Mr Lowe had and more importantly (b)because of his failure to give notice of the proposed meeting where dismissal was to be considered (c)and for his failure to allow Mr Lowe a representative at such meeting made the decision manifestly unfair."
As to the first, it is evident from what the Industrial Tribunal found, and Mr McMullen did not argue the contrary, that they considered this point and came to the conclusion that the presence of the list of illnesses would not have made a significant difference had it been available to Dr Thompson. So that although, obviously, it was unfortunate that Dr Thompson did not get the documentary evidence that he asked for, having heard Dr Thompson in evidence before them, they reached that factual decision which is plainly binding on us and was not sought to be challenged. So that ground is not one that can be relied on before us.Secondly, so far as the failing to give notice is concerned there is no doubt but that the Industrial Tribunal is well aware of that failure and that they took it into account and found that it was outweighed by other considerations. Their decision is in paragraph 13 where they say:
"The Tribunal have found this case a very close run thing. Having considered all the facts and particularly bearing in mind the fact that Mr Lowe could, when questioned by Mr Billmore at the meeting, have said "well I have discussed this matter with my doctor and he thinks that I should have early retirement" and thereby put Mr Billmore on notice of a possible alternative medical view but instead of that he merely maintained that he was fit."
The Industrial Tribunal reaches a conclusion that:
"In these circumstances the fact that Mr Lowe was given an adequate chance to explain overcame the undoubted errors that Mr Billmore did fall into...."
That is a balancing exercise which it is plainly within the functions of the Industrial Tribunal to indulge in and can only be interfered with by this Tribunal if the decision can be categorised as "perverse". Mr McMullen naturally recognised this and his argument as formulated in reply was that there is a legal principle that where brief written evidence is available and relied on for an employer, no reasonable employer would dismiss on medical grounds without(a) disclosing subsequent brief written medical certificates by the same consultant and(b) disclosing all of that evidence.That distinction is sought to be based on the apparent use of the certificates in the appeal proceedings which it will be recalled, the Industrial Tribunal found were fairly conducted. Certain it is that there is a specific quotation in the memorandum of the appeal hearing which was on 18 August 1988, from the first of the two medical certificates and I need not read it again. There is a specific mention of the date of the second medical examination but there is no quotation from that one which it will be recalled is the one that recorded the assumption by Dr Thompson regarding Mr Lowe's fitness for light work.The conclusion is sought to be drawn that there was a failure to look at that later certificate and that that led to a failure to appreciate that there was support of a factual nature for what Mr Lowe had relied upon when tackled by Mr Billmore, namely, that he was being asked to do heavier work than the job was expected, both by him and by his late superior Mr Cook, to involve.This argument seems to us to fall into the trap of erecting into a principle of law what is actually a decision of fact. Of course, if there were such a principle as was enunciated by Mr McMullen on behalf of Mr Lowe, it would be a matter of law but we are quite unable to discern a requirement in the law of such precision in relation to the availability of medical evidence however briefly written. It must, in our judgement, be a question of judgement in each individual case what it is and is not sufficient for an employer to disclose in carrying out his duty which we readily accept is to give ample opportunity to an employee, whom it is proposed to dismissed on medical grounds, of meeting what is being said. That as a proposition is, in our view, to be found in E Lindsey v Daubney 1977 ICR 566 to which we were referred and in which Phillips J pointed out that:
"While employers cannot be expected to be, nor is it desirable that they should set themselves up as, medical experts, the decision to dismiss or not to dismiss is not a medical question., but a question to be answered by the employers in the light of the available medical advice. It is important, therefore, that when seeking advice employers should do so in terms suitably adjusted to the circumstances."
A little later on on the same page:
"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."
That last sentence we feel is support for the attitude that we adopt in declining to erect into the status of a legal principle, a requirement regarding the disclosure of particular types of medical evidence.In this case the Industrial Tribunal has found as a fact that there was an opportunity given to Mr Lowe to deal with the question of the medical evidence. So far as there was a difference between the two certificates, that was not a point that was, so far as we can discover, taken at any stage of these proceedings until Mr McMullen's eagle eye saw the difference between the two. In our judgement it would be quite impossible for us to hold that the Industrial Tribunal came to a perverse decision in reaching the one it did through failure to appreciate the differences between those two medical certificates. We are, in fact, unpersuaded that the second medical certificate does amount to a certificate, or the equivalent, by Dr Thompson that Mr Lowe was only fit for light work. That is not in terms what was said but that is not the principle reason for our decision on this aspect of the matter.Two other issues need to be disposed of. One is that when the letter was given to Mr Lowe it was couched in rather surprisingly legal form and contained this paragraph:
"As a result of your frequent periods of sickness/absence which are detrimental to the Board's business, I confirm informing you that your continued absences from duty is conduct of a repudiatory nature which warrants termination of your contract of employment."
It may be of course, that Mr Billmore is well aware of the differences between fundamental and non-fundamental breaches of contract but however that might be, we are quite satisfied that that claim that Mr Lowe was guilty of repudiatory breach of contract is first, technically unjustified but secondly, and this is what matters, not of any practical significance because what happened was that Mr Lowe was given statutory notice of twelve weeks of the termination of his employment. He was not treated as having repudiated the contract by his continued absences from work so that this was really no more on examination than an incorrect, albeit technical, allegation by Mr Billmore. It had no practical consequences and in our judgement cannot form the basis of a successful appeal.The way in which it was put was that there was a failure to consider the reason that the employer of course, has to establish for fairly dismissing his employee. At the end of the day Mr McMullen very rightly and fairly accepted that there was implicit in the Industrial Tribunal's decision a finding that the reason was the persistency and frequence of Mr Lowe's absence from duty caused no doubt by medical reasons.The other point that needs to be disposed of is that there was an argument based on Mr Riley, who it will be recalled was the other employee whose record was similarly defective for health reasons, and it was submitted that there was an imbalance between the treatment that was accorded to Mr Riley and that which was accorded to Mr Lowe. It appears very clearly from the notes of evidence that were before us, that the employees of British Rail came unprepared to deal with a comparison of Mr Riley's case with Mr Lowe's. The point was not taken in the IT1 signed by Mr Lowe, and that no doubt accounts for the very brief mention that Mr Riley has in the Industrial Tribunal's decision, which reads as follows:
"There were two such people, one Mr Riley - whom the tribunal heard was retired early on the grounds of ill health and the second Mr Lowe."
In our judgement it would be quite impossible on this material for us to conclude that Mr Riley's case and that of Mr Lowe were sufficiently close in medical terms and in employment terms for any meaningful comparison to be made such as to entitle one to decide that Mr Lowe was unfairly dismissed. The probabilities of there being sufficient identity between the two seem to us not to be very great but however great they may be it simply is not there on the evidence for us. For all those reasons this appeal will be dismissed.