London Borough Of Richmond Upon Thames v Buckle [1992] UKEAT 591_90_0707

EAT
London Borough Of Richmond Upon Thames v Buckle
[1992] UKEAT 591_90_0707 · 1992-07-07

JUDGE HARGROVE QC:

By a majority decision the Industrial Tribunal found that the Respondent had been unfairly dismissed. The grounds upon which the Appellants sought to dispense with the Respondent's services were ill health. The Respondent's duties as a Caretaker encompassed porterage, which included the movement of manageable items of furniture and equipment, taking delivery of goods, stores and fuel. Also he was charged with the duty of clearing snow and ice from pathways and using gritting material, and finally, he was responsible for security.The Respondent's medical history, so far as is relevant, is on the 14th July 1987 until the 6th November 1987, he was suffering from myocardial infarction. Between the 22nd August 1988 and the 26th August, he had a bowel infection, from the 19th January 1989 until 20th March 1989 there was a post-myocardial infarction, and between the 10th April 1989 and the 22nd May 1989 he suffered from fluid on the lungs.As a result on the 21st June 1989, the Appellants referred the Respondent to Dr Small, who was the Council's specialist in occupational medicine. He considered a report from the Respondent's General Practitioner dated 5th September 1989 and he saw the Respondent on the 1st November of that year. What resulted from that was that she reported that she had counselled the Respondent about his job. He had already been told both by the hospital Consultant and his General Practitioner not to undertake heavy lifting and to take his time and not rush. Dr Small believed that following her counselling the Respondent had agreed to accept early retirement and he certified that she was incapable of discharging the duties of his employment by reason of permanent ill health.On the 29th December 1989 the NUPE Branch Secretary, wrote to the Appellants claiming that the Respondent was fit to return to work and including a medical report from a Senior House Officer and denying that the Respondent had ever agreed to early retirement. Before us Mrs Buckle very frankly admitted that Mr Buckle had agreed to early retirement, he being a man who would do what doctors recommended and only later did he realise his mistake.A job monitoring scheme was proposed by the Appellants but this was refused by the Respondent. The Union representative, Mr Hogan then proposed on the 8th February 1990, the appointment of an independent doctor:

"to act as arbitrator."

This was accepted by the Appellants on the 16th February 1990. On the 20th February the Respondent applied to the Industrial Tribunal complaining of suspension on medical grounds. That application was eventually withdrawn. The Respondent refused to undergo the examination by the independent doctor, and on the 5th March he was given 9 week's notice of termination. On the 7th March Mr Buckle changed his mind and Dr Mitchell-Heggs, a consultant, an occupational physician at St George's Hospital was appointed. The change of mind has been explained to us by Mrs Buckle, very understandably, upon the basis that they were fearful of losing their house which was one of the requirements of his job that he should remain on the premises. On the 9th March the Respondent made a further application to the Industrial Tribunal based on unfair dismissal. Dr Mitchell-Heggs formed the view that aspects of Mr Buckle's work were not in his medical best interest, including the aspect of heavy lifting, long shifts resulting in fatigue and security alarm calls. She indicated that it was in the Appellant's best interest for him to be offered medical retirement. She also formed the view that subject to accommodation both Mr and Mrs Buckle would accept that he should retire early.Acting on that report the Appellants retired the Respondent on the 11th May 1990. Mr Buckle was 60 at that time.Before the Industrial Tribunal the reasons that were cited for the unfairness of the dismissal were on a number of grounds. First that the Council did not deal fairly procedurally with the dismissal. It is said that the Council allowed Mr Buckle to work between the 10th March and 1st November 1989, that period is in fact disputed, but for the purpose of this argument we will accept that it extended over the whole of that period. The delay is said to be unexplained and not in accordance with a good industrial practice. They said it lulled the Respondent into a sense of false security. Secondly, it said that there were delays in obtaining medical assessments. Thirdly, that there was further unfairness in that notwithstanding the Respondent's initial reaction, that he did not want any other job other than that of Caretaker at that particular school, the Appellants took a rather casual laid back attitude, which would have been better replaced, it is said, with one of a more persuasive and counselling nature. Finally, that the Appellants did not genuinely believe that Mr Buckle was ill.The Industrial Tribunal did not set out in any detail the facts upon which these reasons are based. Nor have they been explicit upon the foundation of law upon which they rely. Unfortunately this had led them into error, they failed to ask themselves the question whether the dismissal or retirement was unfair in the light of the situation existing at the time of the dismissal. They failed to enquire whether early retirement fell within the band of reasonable responses. These two omissions are fatal flaws.However, the defects go further, there is no evidence to justify the finding that the employers did not believe that Mr Buckle was ill, indeed all the evidence points the other way. On this point, in our view, the decision was perverse. It is difficult to understand how that assertion can lie with the acceptance by the employers of the appointment of an independent medical practitioner to assess the matter and to their reliance upon the findings of that medical practitioner.The approach that because the employers delayed in dismissing the employee, this induced a false sense of security and thereby makes the dismissal unfair, does not stand up to examination. The delay, and it is accepted that there was some delay, occurred in 1989. This cannot affect the question of what is the correct approach to the ill health problem in May of 1990, moreover, we do not consider that even where an employer has delayed, if ill health is a continuing problem then the employer cannot be estopped from making a reasonable effort to solve it, particularly where there is a risk to both the employee and possibly to others. No good employer should regard delay, in the case of ill health, as being a reason for not eventually "grasping the nettle".The procedural unfairness allegation in allowing Mr Buckle to return to work fails when it is realised that Mr Buckle was allowed to return to work only when his General Practitioner discharged him.The other aspect of reasons, which is also unsupportable, is the claim that there is something wrong with the procedure by not trying harder to provide alternative work. By a letter of the 5th March 1990, Mr Clark, on behalf of the employers, amongst other matters, wrote this:
"Although we have only briefly discussed the possibility of alternative employment and your wife stated again this morning that you would not be interested in pursuing this option, if you do change your mind I would be happy to investigate any possibilities that are available."
The phrase "not being persuasive enough" is an illegitimate criticism. It is plain that the employers considered and offered, to find alternative employment if they could. The law does not require persistent persuasion of an employee. An employee is at liberty, as Mr Buckle did, to refuse other employment and to safe from persistent importuning by the employer.We have considered Polkey v. A. E Dayton Services Ltd [1988] ICR 142 and Fuller v. Lloyd's Bank [1991] IRLR 336, the first case emphasises that the weight to be attached to procedural failure will depend upon the circumstances known to the employer at the date of the dismissal. The second, poses the question whether the defect renders the overall procedure intrinsically unfair, so making the dismissal unfair. In the light of the fact that the time to be considered is May 1990, and that at that stage the Appellants had two reports from doctors, one a consultant, and an independent consultant, saying plainly that the Respondent was unfit, they were entitled to accept those views in preference to other medical views which were expressed in more guarded terms. They had agreed with the appointment of an independent expert and had accepted her view. That procedure was wholly fair. On these aspects the Industrial Tribunal is plainly wrong both in the sense of being perverse and in law, in that they looked at the wrong period in deciding the question of unfairness. The minority judgment of the Industrial Tribunal asked the correct question.The decision of the Industrial Tribunal cannot stand. We have considered whether we should remit this matter for re-trial but we have concluded that the matters before us are adequate for us to say that the decision to retire on the grounds of ill health was, in law, a fair one. This is a unanimous decision.I have been asked by my colleagues, and do so willingly, to add certain matters which do not form part of the decision. We have been both grateful to Mrs Buckle for the manner in which she has presented her case and would express our admiration for, not only what she has done now, but bearing in mind the burden she and her husband must have borne since 1989, we regard her activities with nothing but admiration. Secondly, we have looked, obviously, at all the documentation and one thing shines out, it is, that during his years certainly of work for the London Borough of Richmond he was an exemplary employee, we merely express the hope that it would not be impossible for a man of this calibre, who must be something of a rarity today, to still be found some form of useful work.