Luke v Navy Army & Airforce Institutes [1992] UKEAT 223_90_0602

EAT
Luke v Navy Army & Airforce Institutes
[1992] UKEAT 223_90_0602 · 1992-02-06
MR JUSTICE PILL: This is an Appeal by Mr Lawrence Luke from the Decision of the Industrial Tribunal sitting at London (South) under the Chairmanship of Mr D J Walker who dismissed his complaint that he had been unfairly dismissed by the Navy Army and Airforce Institutes (NAAFI).Mr Luke had been employed by NAAFI since 1971. His work involved the installation and maintenance of billiard tables in clubs operated by NAAFI in their Central Southern area. A good deal of manual work was involved.Unfortunately, on the 31st October 1988, Mr Luke had a road accident on the M40 when driving to Brize Norton RAF Base. His car was struck in the back and he sustained a severe whiplash injury. He was 51 years old at that time.As is set out in the reasoned Decision of the Tribunal Mr Luke remained away from work by reason of injuries sustained in the road accident until the 18th September 1989. On that date he was interviewed by his Manager, Mr Liddeard and was dismissed. The Tribunal set out the facts. Their Decision was by a majority. The minority member's findings and conclusions are set out in paragraphs 10 and 11 of the Decision document.The facts as found by the majority are set out in paragraphs 3 to 7. In paragraph 8 they state that those findings are sufficient for the resolution of the case. Their reasoning is at paragraph 9 of the Decision.It emerges that in February 1989 Mr Luke was examined by NAAFI's Medical Officer who decided that he could not resume the work for which he had been employed. The Medical Officer, Dr Smyth also believed that Mr Luke might carry out alternative lighter work if that could be found. Mr Luke had also been examined, as one would expect, by his own Doctor.It was found by the majority that Mr Luke's own Doctor examined him once a month and had continuing conversations throughout 1989 with Dr Smyth. Mr Luke's Doctor clearly agreed that Mr Luke was unable to return full time to his pre-accident work. In February 1989 there was some difference between the Doctors as to the number of days a week during which Mr Luke might be able to do lighter work if such work was made available to him.

On the 14th June 1989 Mr Luke was interviewed by Mr Dobson whose "real mission"

as the majority put it, was to tell Mr Luke that if he did not return to work within three months his Contract of Employment would be terminated. Mr Luke objected strongly at that time. Subsequently he spoke, on more than one occasion, to Mr Towse a more senior officer of NAAFI, expressing similar objections.NAAFI had a Committee which considered Mr Luke's case, no doubt along with others, at monthly meetings. Dr Smyth and Mr Allan, the Personnel Manager, were members of that Committee. The majority found that at those meetings the possibility of alternative work for Mr Luke was considered but that nothing could be found which was in reach of Mr Luke's home and which Mr Allan felt Mr Luke would be able to do without physical difficulty and possible pain. In early September the Committee came to the conclusion that Mr Luke's employment must be brought to an end. It was on 18th September that Mr Liddeard saw him and the majority found that Mr Liddeard ascertained from Mr Luke that his own Doctor and his Specialist agreed with the Medical Officer's view that Mr Luke was not fit for his work and would not be fit for some time to come. Mr Liddeard then terminated the employment and handed Mr Luke a letter which had clearly been typed previously and which is dated 7th September dismissing Mr Luke and telling him the terms of dismissal. It was noted in the letter that the writer was:
"sorry to hear that you are not well enough to return to work and do hope that the treatment you are receiving is proving beneficial"

it was further stated in the same letter that

"it is unlikely that you will be in a position to return to duty for some time"

The possibility of his applying for re-engagement when his Doctor declared him fit was also mentioned. Salary in lieu of notice was paid to Mr Luke.On behalf of Mr Luke, Mr Aeberli's first submission is that NAAFI had insufficient medical evidence to justify the dismissal and that the Tribunal could not reasonably hold on the evidence that sufficient medical evidence had been obtained and that the nature of that evidence was such as to make the dismissal fair. Mr Aeberli referred us to the case of East Lindsey Council v. Daubney [1977] ICR 566 where it was held that the employers had failed to obtain information about the employee's state of health, which they ought reasonably to have obtained. That was a Decision of this Tribunal presided over by Mr Justice Phillips who stated that employers should seek advice in terms suitably adjusted to the circumstances of the case. Mr Aeberli's further submissions are based upon the alleged failure of NAAFI to follow a proper procedure before dismissing Mr Luke. There was insufficient consultation with him; insufficient enquiries were made by NAAFI and NAAFI had failed to discharge their duties under Section 57(3) of the 1985 Act. Consideration should have been given to making an offer of alternative employment, having regard to the resources available to NAAFI. It is further submitted that the Tribunal could not reasonably have come to the Decision that in the circumstances the dismissal was fair and that the majority have not given sufficient reasons for the Decision which they reached.The Decision of the majority is set out in paragraph 9 of the document and it reads as follows:
"This is in fact a somewhat unhappy case which has exercised the minds of the Members of this Tribunal considerably. It is a matter of regret to us that we are not unanimous in our conclusions, but, given the circumstances, we are of the view that that is by no means surprising. The Chairman and one Member, take the view that, whilst there may be a number of employers who would consider that, as the Applicant had been injured in the course of his employment (as the Respondents readily admit), some method should be found to continue his employment as a matter of moral responsibility, it cannot be said that there are no reasonable employers who, if they found themselves in the shoes of the Respondents, would consider that dismissal was within their range of reasonable responses having regard to the degree of the Applicant's disability. That is to say, in the view of the majority, there are certainly some employers, reasonable employers, who would have taken the view in these circumstances that they could dismiss the Applicant for his incapacity."
Mr Aeberli accepts that the majority applied the correct test which was to determine whether the Respondents' decision to dismiss was within the range of reasonable responses and in recognising that this had to be assessed having regard to the Appellant's disability.On the point raised as to the adequacy of evidence of disability we have come to the conclusion that the majority were entitled as the Tribunal of fact to hold that Mr Luke was incapable in September 1989 of doing his pre-accident work and that such incapacity was likely to continue for some time into the future. Further, having set out the facts as they found them to be there was no defect in reasoning in this respect. We have regard to the fact that Mr Luke's own medical advisers, so the majority found, agreed that Mr Luke was not fit for his pre-accident work. The point is made that the decision was taken on the 7th September 1989 (the date of the letter) whereas the interview at which those facts emerged was not until the 18th September 1989. However, we accept that the dismissal took effect only when the letter was handed to Mr Luke albeit that it had been drafted some days earlier. The Tribunal were entitled to find that the dismissal did not operate until that time and at that time Mr Liddeard had been made aware of the Mr Luke's own view, as advised by his Doctors, of his condition.We have seen the documents which were before the Tribunal. There does not appear to have been an issue as to unfitness between the Applicant and NAAFI. The issue was as to what should follow from that incapacity by way of offers of alternative employment or other means of accommodating a long standing employee. Indeed in his Originating Application Mr Luke stated that:
"The reasons given were ill-health, but the Company Doctor told me he would try to find me a lighter job within the Company, by contacting Personnel Department. This did not take place despite repeated requests by myself."
It was the failure to make efforts such as those and to have consultation such as those which was the subject of Mr Luke's complaint. Further the letter of dismissal does state, and we have no reason to doubt the good faith in which it was written, that there was an incapacity in Mr Luke due to ill health. The majority of the Tribunal were entitled to find that Mr Luke was not well enough to do his pre-accident work and by inference to find, as they must have done in our view, that sufficient enquiries into his state of health had been made.The evidence as to consultation in relation to ways in which the situation might have been dealt with is however, in our view much less satisfactory. The only reasoning is that set out in paragraph 9 which we have read.Mr Aeberli makes the point that the dissenting Member set out persuasively his findings and his reasoning as to why the dismissal was unfair. We cannot agree with him that his findings of fact must be taken to be those of the majority because in some respects they conflict with the findings of fact expressly made by the majority. Where however we find considerable force in Mr Aeberli's submissions is that, particularly when a dissenting Member has set out his reasoning in some detail, there is an obligation upon the majority to explain to an unsuccessful applicant why they are finding against him. Their findings as to what consultation occurred, whether they addressed themselves to the appropriateness of those consultations and enquiries, and if so, by what route they came to the conclusion that the consultations and enquiries were adequate, is not stated at all.Mr Osborne, for whose careful submissions on behalf of NAAFI we are also indebted, submits that the reasoning is sufficiently clear.We were referred by Mr Aeberli to the decision of the House of Lords in Polkey v. A E Dayton Services Ltd [1988] ICR 142 and to the subsequent decision of the Court of Session, Outer House in Scotland in Links & Co Ltd v. Rose [1991] IRLR 353. We were referred to the terms of Section 57(3) of the 1978 Act. In the case of Rose the adequacy of the Industrial Tribunal's findings of fact was in question and the Court held that there was no sufficient material in the findings of fact to enable the adequacy of the consultation process to be assessed. It was held there should have been findings of fact dealing with all the exchanges between the parties bearing upon warnings, an attempt to ascertain the employee's medical position and consultation about possible alternatives to a return to full duties. In not making such findings the Industrial Tribunal had failed to take into account all material that was relevant to the matter they had to decide, namely, whether or not the procedural steps, enquiring; warning; consultation and consideration of alternatives appropriate to the circumstances of the case were taken by the employers.On the question of consultation as to alternative work we have come to the same conclusion in this case. As we have stated, we accept that the Tribunal were entitled to find that Mr Luke was incapable of doing his pre-accident work and that finding must be upheld but we consider that the reasoning of the Tribunal on the question of consultation and consideration of alternatives was quite inadequate. Mr Osborne points out, and this is not in issue, that the point which exercised the Tribunal was the morality of dismissing someone who had been injured in the course of his employment. They reached a conclusion on that point which is not the subject of challenge. However, if one takes that out of paragraph 9, there is no reasoning whatever upon the questions of consultation and the duties upon employers in a situation where a long standing employee is found to be incapable of doing his pre-accident work.We consider that the appropriate course is to remit that question to the Industrial Tribunal. We are conscious of the lapse of time since its Decision and the difficulties which may flow from that but in our judgment they should reconsider the question of the employer's duties in the situation which had arisen make their findings and state their reasons as to whether the employers have complied with their duties.We will hear Counsel further on the terms of the remission, having given them notice of that possibility. We make an Order allowing the Appeal and remitting the case to the same Tribunal.