McGarry v British Railways Board [1992] UKEAT 63_91_1611

EAT
McGarry v British Railways Board
[1992] UKEAT 63_91_1611 · 1992-11-16

LORD COULSFIELD :

The Appellant in this case was employed by the Respondents from 3 August 1951 until his dismissal on 13 August 1988. The reason for the dismissal was his capability, which was related to a medical state from which he suffered as a result of certain spinal problems. His application to an Industrial Tribunal was heard at Manchester on 20 March 1989. The Tribunal, under the Chairmanship of Mr B Woodward, held that he had been unfairly dismissed, but adjourned the question of remedy. After a further hearing the Industrial Tribunal refused to grant orders for reinstatement or re-engagement and also expressed the view that there would have been no award of compensation; there would be no basic award because he had received a redundancy payment, albeit an ex gratia one, and no compensatory award because he had sustained no loss.The history of the Appellant's employment which led up to the dismissal is that in 1984 he was assistant stationmaster at Preston. When the spinal problems began, the Respondents' area medical officer reported that he was not fit for the work of that position. Thereafter he worked on special duties and later occupied a clerical position at a place called the "common signing on point". Although he was working at a lower grade of job, he was paid the salary to which he had previously been entitled.In 1986 he was absent from work on a number of occasions. There were several interviews and a certain amount of correspondence, in which there was discussion of retirement on the ground of ill-health or alternatively of redundancy. In 1987 there were further absences, in April and July; and in September the Appellant was again absent from work, and did not return to it. There were more discussions thereafter and, at one time at least, it was understood that the Appellant would retire under the ill-health scheme.By February 1988 the position was that the Appellant had indicated that he did not wish to return to work at the signing on point because of problems associated with bending and lifting which tended to aggravate his condition and again there was some discussion with a view to resolution of these problems. There were also enquiries about other suitable work but these did not lead to any result. The area manager considered that the problems might be soluble but on 11 February 1988 the Appellant presented a certificate from his own general practitioner stating that he would be fit to return to work on 15 February. As a result, the area manager decided to terminate his employment. The employment was terminated on the basis of 6 months notice, during which he received payment of his salary, and a redundancy payment. There were certain further discussions but they led to no practical result.The Industrial Tribunal held that the dismissal was a dismissal for incapacity being a reason related to health, but not one for redundancy, which, indeed, the Respondents did not suggest, in spite of the fact that an ex gratia payment had been made. The Industrial Tribunal also held, under S.57(3) of the 1978 Act, that no criticism could be made of the Respondents' treatment of the Appellant in relation to the job of an assistant station manager. In dealing with that part of the case the Industrial Tribunal said:
"We could have no criticism whatsoever of the way in which the respondent dealt with the applicant in relation to his medical condition when considering his fitness for the post of Assistant Station Manager. The respondent did all that could possibly be expected of a reasonable employer in the assessment that it made of the applicant's condition (by medical reports and discussions with the applicant). Similarly in accordance with our findings of fact the respondent did all it could to find alternative employment for the applicant. With the position at the common signing on point the respondent, although its managers considered the applicant perfectly capable of doing that job, because the applicant felt incapable chose not to compel him so to do. For a considerable period of time the respondent took no action on the applicant's employment even though his absences were for substantial periods and the respondents needed someone to fill the post at the common signing on point."
The Industrial Tribunal went on to consider the effect of the decision in HOOPER v BRITISH RAILWAYS BOARD [1988] IRLR 518. In that case, as in the present, the employee's contract was subject to a condition, referred to as the condition contained in minute G233, in terms of which a member of the staff who had been declared fit by his own doctor, but who did not meet the medical standards required by the Railways Medical Officer, should be paid the basic rate of pay appropriate to his grade until such time as he resumed work, either in his own post or on other suitable work. The Industrial Tribunal held that although no consideration had been given to the terms of that minute at the time of termination of the Appellant's employment, the fact that that condition was included in his contract of employment led them to consider that the dismissal was unfair. That was the only reason which the Industrial Reason gave for their finding.When the hearing to determine the remedy took place, the Applicant gave evidence but no evidence was led on behalf of the Respondents. The Industrial Tribunal summarised the effect of the Applicant's evidence as follows:
"The applicant gave evidence on his own behalf. We accept his evidence as truthful and accurate. In February 1988 the applicant was signed fit to return to work by his doctor. After the termination of his employment on the 13 August 1988 he was certified unfit for work until the 9 March 1989. There were then periods when he attended for Employment Rehabilitation and further periods of sickness. By the middle of 1989, as he told us, he was deemed not likely ever to get employment by reason of ill-health and was discharged from Employment Rehabilitation. He was certified unfit for work from August 1989 until April 1990. He again commenced on a Government Rehabilitation Scheme part-time for a 12 month period. He was registered disabled. He is on Invalidity Benefit until the 31 March 1991."
The Industrial Tribunal went on to say that although the Appellant wished to be reinstated, they were satisfied, that, by reason of his state of health, it was totally impracticable for the respondent to comply with an order for reinstatement or re-engagement and they therefore decided not to exercise their discretion to make such orders. The Industrial Tribunal recorded that no request had been made by the Appellant for an award of compensation but they expressed the view that, had there been such an application, no award would have been made. In the course of argument before us, it was pointed out that S.68(2) of the 1978 Act does require an Industrial Tribunal to make an award of compensation but no stress was laid on that point and it was not suggested as part of the grounds of appeal that the Industrial Tribunal should have proceeded to make such an award.The grounds of appeal in the argument before us were, firstly, that the Industrial Tribunal had substituted its own judgment for that which a reasonable employer would have made and had in that respect fallen into an error of law; and, secondly, that it had reached a decision which was perverse. So far as the first ground was concerned, it was pointed out that the Respondents had led no evidence and therefore had provided the Industrial Tribunal with no material, for example in relation to positions which might have been available for the Appellant. They had consequently failed to provide the Industrial Tribunal with any material upon which they could decide that it was impracticable for re-engagement to be ordered, in a situation in which the Appellant presented himself as ready to be re-engaged, and in which there were indications, at least, in the evidence given before the Industrial Tribunal that there was some kind of work for which he would be fit. The fact that he had been accepted for Employment Rehabilitation was, it was submitted, an indication that there would be some work which he could do. It was accepted that there may be circumstances in which evidence of the availability or non-availability of vacancies is not required, for example where the employee has suffered injury so grave that it would be manifestly impossible for him to do any kind of work at all; but it was submitted that this was not such a case.So far as the question of perversity is concerned, the argument proceeded on similar lines. It was said to be perverse to say that re-engagement should not be ordered where the employee was willing and able to do some work. It was further submitted that it was wrong for the Industrial Tribunal to have regard to anything which had happened between the previous hearing and the hearing concerned with the remedy and, indeed, that the Industrial Tribunal could only take account of the material available at the first hearing to a limited extent. What the Industrial Tribunal required to do, it was submitted, was to direct its attention to the question of practicability as at the date of the remedial hearing. There had been a gap of some 18 months between the two hearings.For the Respondents it was submitted that the Appellant's argument went too far in confounding impracticability with impossibility. It was not enough to raise a doubt as to the Industrial Tribunal's decision to say that it was not impossible that there could be some work that he would be fit to do and the Industrial Tribunal had a discretion which they could exercise in such circumstances. Looking at the overall position, there was material upon which the Industrial Tribunal had been entitled to reach the conclusion that it did, there was no obligation upon the Respondents to lead evidence and no conclusion could be drawn that the Industrial Tribunal had substituted their own view for that of a reasonable employer.In our view this case can be dealt with simply on its own facts. The Industrial Tribunal had before it the whole history of the employment of the Appellant and the effect which his periods of ill-health had upon it. In the first hearing that history was explored in detail and the Industrial Tribunal found that the Respondents had acted reasonably in, among other things, taking all proper and necessary steps to find an alternative post for the Appellant which he could occupy. They had before them the history of the Appellant's frequent absences from work; of the difficulties which he had experienced in attempting to carry out his work, when he was at work; and of the various discussions which had taken place, including discussions in which, at various times, the Appellant had expressed a readiness to accept redundancy or ill-health retirement.The Industrial Tribunal were, in our opinion, entitled to set the evidence of the Appellant himself against the background of the previous history. The evidence indicated that the health problems from which he had suffered were not resolved, that there were recurrent periods of unfitness and that there was a severe doubt as to whether he was likely to be fit for any form of work with the Respondents. In these circumstances we do not think that it was necessary for the Industrial Tribunal to hear evidence from the Respondents to entitle them to reach the conclusion, on the facts of the case, that it was manifestly impracticable for the Respondents to comply with an order for reinstatement or re-engagement. In the circumstances of this case, that is not a matter which depends upon any particular considerations of law, except the ordinary principle that it is for the Industrial Tribunal to assess the facts and circumstances, on the basis of the evidence led before it.In our view, therefore, there is no ground for saying that the Industrial Tribunal went wrong by substituting its own view of the circumstances for that which a reasonable employer would have taken. The material on which it could reach a conclusion was there, and it was not necessary for the Respondents to produce further evidence to enable the Industrial Tribunal to resolve the issue. Similarly there is no ground for saying that the Industrial Tribunal was perverse in reaching the conclusion at which it arrived.In these circumstances the appeal will be dismissed.