London Borough Of Tower Hamlets v Bull [1993] UKEAT 153_91_1503

EAT
London Borough Of Tower Hamlets v Bull
[1993] UKEAT 153_91_1503 · 1993-03-15

JUDGE PEPPITT QC : The Judgment which I am about to deliver is a unanimous Judgment.

This is an appeal from a decision of the North London Industrial Tribunal given on 11 February 1992, written reasons being delivered on 22 February 1992. The Industrial Tribunal held that the Respondent Mr Bull, had been unfairly dismissed by the Appellants but that by his conduct he had contributed to his dismissal to the extent of 60%. The dismissal had been founded on capability, the Appellants arguing that the Respondent was incapable of fulfilling his contractual duties by reason of ill-health. They based themselves as will emerge in the course of this Judgment on the Appellant's attendance record which the Tribunal itself described as very poor.We heard Mr Cotter on behalf of the Appellants. The Respondent did not appear and was not represented before us having intimated by letters to the Tribunal that he would not be pursuing a cross-appeal which he had launched and would not be opposing the appeal. That, of course, does not exonerate us from the duty of considering whether the Appellants have made out their case.Mr Bull began his employment with the Appellants on 21 October 1987. He was a building attendant. On 1 September 1988, a little under a year later, his post was made permanent but there followed from that time what seems to us to have been a very bad attendance record which caused concern to the Appellants with the result that Mr Bull from January 1990 onwards, received what ordinarily might be described as a number of warnings. For the purposes of this case where the grounds relied upon by the employers are ill-health, it might be more accurate to describe what went on as period counselling rather than repeated warnings.The Respondent was consulted about his attendance record as early as 15 August 1989 by Mr Clarke, his office service manager. There followed on 23 January 1990 a further discussion between the Respondent and Mr Waller his supervisor. On 27 February 1990 there occurred the first formal review under the Appellant's sickness procedure which consisted in the interview between Mr Clarke and the Respondent. In the course of that interview it emerged that the Respondent's absences though repeated, were of comparatively short duration and had been attributed to a variety of causes, all of a transient nature and apparently unconnected with each other. Arrangements were made on the occasion of that meeting for the Respondent to visit the Appellants' doctor who, if necessary, was to speak to the Respondent's own general practitioner. There was to be a further meeting in a month to assess whether the Respondent's attendance record had improved.On 29 May 1990, after further absences from work, the Respondent was interviewed by the Appellants' occupational health physician who advised that he was fit to return to work within 2 days of the examination. There followed on 29 May a second formal review, again with Mr Clarke. Mr Clarke told the Respondent that he was looking for a long period of uninterrupted work and a warning was given about any future absence by the Respondent. At that meeting the Respondent was also provided with a copy of the Appellants' sickness procedure so that he could fully understand the situation. He had by this stage, this stage being 29 May 1990, recorded 53 days absence from work since July of the previous year.On 25 June 1990 the Respondent having been absent from work for a further 4 days since his meeting with Mr Clarke on 29 May, was formally interviewed by Mrs Dean. Her notes of that interview in manuscript, appear at pages 33-35 of the bundle before us. She ascertained that the Respondent had been absent from work for a total of 110 days since October 1987 and considered the opinion of the Appellants' doctor in terms set out on page 33 of our bundle. The doctor had reported that there were a variety of illnesses leading to the Respondent's absences from work but no underlying reason which could be detected. After considering the matter at some length Mrs Dean decided that the Respondent should be dismissed on grounds of incapability by reason of ill-health, and told the Respondent so. There followed a development which we have no doubt whatever Mrs Dean did not anticipate.After the decision to dismiss had been communicated to the Respondent his union representative asked to be heard and when he was, told Mrs Dean that the Respondent had had a drink problem, by inference suggesting that it was that which had been responsible for his erratic work record and invited Mrs Dean to invoke the Appellants' alcohol procedure. That procedure consisted in the provision of facilities for counselling and advice for any employee so effected, who were encouraged to come forward, disclose their problems and discuss them with the Appellants.Mrs Dean adjourned the meeting to take advice. Having done so she decided that the Respondent's latter day disclosure - which subsequently emerged to be the true reason for his absences - was too late and confirmed the dismissal. Her decision was subsequently upheld on the Appellants' internal appeal procedure.It was against that background that the Tribunal reached the conclusion which it did. The Tribunal came to its conclusion because it considered itself bound by Devonshire v Trico-Folberth Ltd [1989] ICR 747 to hold that wherever an employee is dismissed on grounds of capability by reason of ill-health there must be proper consultation both with the employee and with his general practitioner. The Tribunal found Mr Bull's dismissal to have been unfair on the sole ground that the Appellants had not consulted with his general practitioner.Devonshire v Trico-Folberth Ltd was a somewhat unusual case where in the course of the dismissal procedure the employers had changed their minds about the grounds upon which Mr Devonshire was dismissed. The only reference to consultation with an employee's general practitioner that has been referred to us is to be found in the Judgment of Lord Justice May in the Court of Appeal at page 750(E). The facts of the case are of no relevance to what we have to decide but at that point in his Judgment Lord Justice May considered the obligations upon an employer when consideration was to be given to the dismissal of an employee on medical grounds. What Lord Justice May said was this:
"Briefly the industrial tribunal held that to the extent that the employer sought to rely upon medical grounds to justify the dismissal, there had been wholly insufficient investigation of the employee's medical condition and insufficient consultation, for instance with her and with her general practitioner. In those circumstances it is perhaps not surprising that the industrial tribunal found that the dismissal, based as it ultimately was on the medical ground, was unfair."
That, I have indicated, is the only passage in the Devonshire case which bore upon the obligation of employers to consult with an employee's general practitioner when considering dismissal on grounds of ill-health.We are bound to say that we cannot ourselves find in that passage or in any other authority cited to us, any authority for the absolute requirement found to exist by the Tribunal that in such circumstances employers must consult the employee's general practitioner. This does not of course mean that such consultation is never necessary. There will be many cases of contemplated dismissal on grounds of ill-health where the ordinary principles of fairness will require the employer to consult his employee's general practitioner before dismissing him. The need in such cases would be to discover whether there was any underlying cause for the employee's illness or illnesses which was not readily apparent from the medical reports which he had provided. But to suggest that there is an absolute obligation applying generally to employers seems to us to subject them to a far too stringent obligation.In our judgment the true test in cases such as this where the employee's complaints are of a transient nature and his absences of work intermittent and on their face unconnected with each other, is that stated by Mr Justice Waterhouse in a case which Mr Cotter cited to us International Sports Co v Thompson [1980] IRLR 340. The test propounded by Mr Justice Waterhouse was a twofold one. Firstly he said there should be a fair review of the employee's attendance record and the reasons for it and secondly, there should be adequate warnings. We prefer to substitute for the second "adequate discussion" rather than "adequate warnings" where the matter in question is attendance attributable to ill-health. Whether a fair review of the employee's attendance record and the reasons for it would require consultation with the employee's general practitioner will depend upon the circumstances of the particular case.To this extent therefore we believe that the Tribunal misdirected itself in law but that of course is not the end of the matter. The true question to be decided is whether the Appellants, in all the circumstances, fairly reviewed Mr Bull's attendance record and the reasons for it and whether they warned or adequately discussed the matter with him. Finally, it has to be decided whether, in all the circumstances, the Appellants' decision to dismiss was reasonable.There was no finding by the Tribunal of inadequate discussion or consultation with the employee, in our view rightly so, and it seems to us that the case turns upon 2 issues. Firstly whether in the circumstances of Mr Bull's case the Appellants should have consulted his general practitioner, and secondly, whether not having done so it was reasonable for them to have dismissed him. We have taken the view that the facts found by and admitted before the Tribunal provide us with sufficient material to enable us to answer those questions ourselves and so avoid the need to remit it to the Tribunal for partial re-hearing.As to the first of these questions the Tribunal found that Mr Bull was aware that he had a health problem caused by his intake of alcohol but despite that knowledge, took no step to consult his general practitioner about it until August 1990 after he had been dismissed. On the contrary the Tribunal found the Respondent was at pains to conceal his problem even to the extent of causing his general practitioner to provide false certificates for his many absences from work.The Respondent also concealed the true reason for his repeated absences from his employers notwithstanding that those absences were the subject of frequent discussions between them from February 1990 onwards and as I have indicated, that the employers' alcohol policy encouraged employees with that problem to come forward for assistance. It was not until 25 June 1990 immediately after he had been dismissed, that Mr Bull's union representative disclosed his drinking problem and asked for the alcohol policy to be invoked. By then Mrs Dean had received medical advice from the Appellant's doctor. That advice had been unequivocal and recommended the Respondent's return to work almost immediately. Mrs Dean thereupon decided that this request on Mr Bull's behalf had come too late and that the dismissal should be confirmed.We think in all the circumstances of this case that Mrs Dean's attitude was within the ambit of reasonable responses available to an employer. In those circumstances we do not consider that it was incumbent upon the employers before dismissing Mr Bull, to consult his general practitioner. His professed complaints were transient and apparently unconnected. His absences from work though repeated were of short duration. Indeed had the Appellants sought to consult Mr Bull's general practitioner they would have been unlikely, in our judgment, to discover anything of relevance not least because Mr Bull had concealed from him the true reason for his absences and at no material time had he sought help about his drink problem. We can understand and sympathise with Mr Bull's reluctance to make public his weakness, but he must have known that such non-disclosure would put his employment in peril.We turn finally to the question of reasonableness. The evidence accepted by the Tribunal was that Mr Bull's attendance record was very poor. By way of example, as I have already indicated, he was absent from work on some 53 days between July 1989 and May 1990. He was a building attendant which is a responsible, important post. His absences must inevitably have imposed a strain on his colleagues and disrupted his employers' scheme of work. These facts, taken in conjunction with the history of the matter as I have sought to outline it; the warnings which he was given; his failure or inability to heed them and his conduct generally drives us to say that in our judgment Mrs Dean, on the Appellants' behalf, was entitled to say of Mr Bull "enough is enough" and to dismiss him.Accordingly this appeal will be allowed and a finding of fair dismissal substituted for that arrived at by the Tribunal.