Gilbert v Portsmouth Publishing & Printing Ltd [1994] UKEAT 63_93_1005

EAT
Gilbert v Portsmouth Publishing & Printing Ltd
[1994] UKEAT 63_93_1005 · 1994-05-10
MR JUSTICE MORISON: I am going to give an extemporary judgment on behalf of the Employment Appeal Tribunal and as is my practice when giving an extemporary judgment, I reserve expressly to myself, the right to add to, alter, vary or otherwise generally try and improve the language with which I seek to express this, our decision.After a three day hearing an Industrial Tribunal held at Southampton unanimously dismissed the complaint made by Mr Gilbert, who we shall call "the employee" that he had been unfairly dismissed by Portsmouth Publishing and Printing Limited, his former employers, who we shall call "the employers". The Industrial Tribunal's decision was entered in the Register on 1st December 1992. The Notice of Appeal is dated 8th January 1993. There was a Preliminary Hearing in April 1993 when various Orders were made in relation to the Full Hearing of this appeal. Because the employee is profoundly deaf arrangements were made in the Industrial Tribunal for the use of a system which enabled what was being said to be shown on a screen. This text, which is virtually a transcript, has been transcribed and it, and the Chairman's Notes of Evidence, have been made available to us.The facts relevant to this appeal may be taken from the Decision and shortly stated. The employee, who is and was at the relevant time, profoundly deaf, was employed by the employers as a cleaner from 5th July 1977 until 10th December 1991, when his employment was terminated on the grounds that he was unfit for further duty.On 11th September 1991 the employee sustained a collapsed lung whilst at work and suffered a second collapse a short while later whilst in the hospital to which he had been rushed.There was the possibility of an operation being performed at some later date but he was discharged from hospital and went to his employer's premises on 7th October 1991 to hand in a sick note. He saw his Manager and told him that he was medically unfit to return to his cleaning duties. His Manager called in his superior and a disputed conversation took place at that meeting.The Industrial Tribunal preferred the employers' evidence as to what happened at that meeting for two principal reasons:a. the employee's recollection on other matters appeared suspect (Paragraphs 24 to 25, 26 to 27, 33 and 43 to 47).b. there was effectively, a contemporaneous note of the meeting prepared by the employers. (Paragraphs 19 to 21).At that meeting the Industrial Tribunal concluded that the employee made the suggestion that he should retire from his employment early on medical grounds. Paragraph 30. The employers indicated that the employee should be entitled to an "early pension" if he did retire early on medical grounds. (Paragraph 31).The employee was asked to, and did sign, a consent form which enabled the employers to get a medical report from their own medical adviser, a Doctor Lagmaid, as to the employee's condition. (Paragraph 32).Dr Langmaid saw the employee on the 13th November 1991 when he had available to him the employee's GP's report. Dr Langmaid's conclusion was that he had no doubt that the employee should not return to his former job because it involved some heavy manual work and that:

"he should therefore retire on grounds of ill health."

He told the employee so at that examination and sent a written report to the same effect to the employers on the same date. (Paragraphs 36 to 38).On 15th November 1991 the employers wrote to the employee confirming that they had received the report and confirmed its conclusion and said that they were in touch with a pension fund about the possibility of an enhanced pension quotation based on ill health. (Paragraph 39).On 19th November 1991 the employee was re-admitted to a hospital with a collapsed lung. Two days later a representative of the employers visited the employee in hospital. There was some discussion there about the possibility of an operation to prevent a further lung collapse but no suggestion that such an operation, if successful, would make the employee fit to resume his duties. (Paragraph 42).Having been discharged from hospital the employee brought in a sick note on 29th November 1991. On this occasion there was some discussion about where the employee's retirement presentation was to take place.On 2nd December 1991 the employers received advice from the pension consultants that a pension could only be paid on early retirement if the employers were prepared to pay an additional sum of £14,800, which they were not. They decided that the employee should be dismissed and the following day offered the employee's position on a permanent basis to the man who had been covering for the employee during his absence due to ill health. (Paragraphs 49 and 50).The letter of dismissal was sent to the employee on 10th December 1991, and he immediately consulted with his union official about it and they met at least two or three times during that month. (Paragraphs 51 and 52).Towards the end of December 1991 the trade union official met with the employers' Director who had taken the decision to dismiss the employee. The official made no suggestion that the employee should be given back his job, nor that he would be fit to resume his duties after the operation, if such was to take place, nor did he raise the possibility of appeal against the decision to dismiss the employee. (Paragraph 55). He raised two issues only: the possibility of giving the employee a further ex-gratia payment and the possibility of declaring him redundant. The employers indicated that neither was available. (Paragraphs 53 to 56).On 15th January 1992 the employee presented his IT1 and claimed re-instatement. The form identified the union official concerned as the employee's representative. When the IT1 was seen it became clear that the employee was suggesting he would be fit to resume work. As this was the first occasion that this had been suggested the employers invited the employee's representative to consider using the Company's internal procedures and exercise a right of appeal. The suggestion was eventually adopted and in due course an appeal was heard by the employers' Managing Director on 16th March 1992. (Paragraphs 57 to 66).Notes of the appeal were made and there is no suggestion that they are inaccurate. During the appeal the union representative accepted that the Company's decision as at 10th December had been taken in good faith and on the basis of the information then available. (Paragraphs 68 to 71). It was suggested that the position might now be different and the employer asked for permission to obtain another medical report. Representatives said that this request would have to be referred to the union solicitors and the employer concluded that it was being fobbed off and that there was no sensible answer to the question whether the employee would ever be fit for work, and if so, when. (Paragraph 72 to 74).At the conclusion of the internal appeal hearing the Managing Director indicated that he rejected the appeal and the Industrial Tribunal found that the principal reasons for rejecting it were that the original decision was admittedly fairly taken, and secondly, there was still doubt about the employee's fitness to work in the future. In the light of these findings of fact the Industrial Tribunal then reached their conclusions. First with regard to the decision leading up to the letter of dismissal on 15th December. Having directed themselves in accordance with the authorities cited to them the Industrial Tribunal concluded that the dismissal at that time was fair. (Paragraphs 79 to 88).The Industrial Tribunal then considered the ratio decidendi of West Midlands Co-operative Society Ltd v. Tipton [1986] ICR 192 and directed themselves in this way:"In other words, we were invited by Counsel for the employee, to look at the situation not only at the time of dismissal, but also at the time of the appeal which took place in March 1992." (Paragraph 91).Having so directed themselves they concluded that the dismissal was fair for the reasons they set out in paragraphs 92 to 94.The skeleton argument which has been presented to us on behalf of the Appellant employee starts with a reference to Tipton and then criticises the Tribunal's findings in relation to the appeal hearing. I can summarise, I hope without doing injustice to the document, what is said. It is said that new matters were raised at the appeal about the employee's state of health which should have led the employers to obtain further medical evidence and not dismiss the appeal until that had been done and the Tribunal appeared to put the burden, in relation to getting fresh evidence, on the employee. Therefore, it is argued, the Tribunal ought to have found the dismissal was unfair in the absence of up to date medical evidence. In this case we have had the benefit, as I have already indicated, of effectively, a transcript of what took place in the Industrial Tribunal, including a transcript of the submissions made by Counsel at that hearing. Counsel then representing the employee said:
"Meeting with two questions to answer, can he return to work and when? I think you must consider whether at that point a reasonable employer would wait and hear from the consultant before making a decision. The meeting with David Ingham was only a few weeks away [I interpolate] from the time when the employee saw the consultant."
There are other references in a similar vein to this. In other words, the Industrial Tribunal had its attention drawn to the need to have regard both to the original decision to dismiss and the decision that was taken on appeal and to ask themselves whether overall the decision to dismiss was fair or unfair. The particular matter they had to think about when they considered the appellate stage was the information being presented to the employers at that time. Would every reasonable employer have decided to wait an apparently indefinite period before dismissing, having regard to all the circumstances and the justice and equity of the position. Or could a reasonable employer have decided as these employers did. That was the issue facing the Industrial Tribunal and speaking for ourselves we cannot see how they can be said in this case to have erred in law.To elaborate a little further on the facts relating to the appeal. In a letter of the 4th February 1992, which was written by the employers' solicitors to Mr Ingham of the GPMU Union, of which he was the Branch Secretary, they say this:
"Your member's application [IT1] does not make the present position in respect of the operation clear. Furthermore no precise details are given as to the extent of the convalescence required by that operation and whether or not the operation would have enabled him to resume work as a cleaner or, of course, the date of which such resumption could have been contemplated.
In view of what appears to be a contradiction and the fact that your member does not invoke the grievance procedure we therefore suggest, with our client company's full consent, that your member now invokes that grievance procedure by way of appeal against the decision to dismiss him to our client company's Managing Director.This will enable the Managing Director to have full access to all up-to-date information as to your member's present medical condition, with the position in respect of the operation and a realistic appraisal of whether or not your member will be in a position to resume his previous duties.Our client company's position is, of course, that they had already secured substantial information concerning that matter from both the company doctor who had been in touch with your member's own doctor and from their own interviews with your member.We do not suggest that your member abandon the application for unfair dismissal but would suggest that the proceedings be stayed pending the grievance procedure's completion."During the Appellate hearing on the 16th March 1992, at a very early stage, the Managing Director of the employers said that there were two questions that needed to be answered:
"will D Gilbert be able to return to work,

and when?"

The response that was given at that time by the representative on behalf of the Appellant was this:
"There is every likelihood that D Gilbert will be able to return to work but, as yet, no date has been suggested. He will know after his examination by the consultant in a few weeks' time."
It seems to us that, in the light of the material that was available to the employer, it was a question for the Industrial Tribunal to decide as to whether a reasonable employer could have concluded that it was appropriate to terminate the employment, or confirm the dismissal at that Appellate hearing or to adjourn the proceedings until after the consultant had been consulted. That is a balancing operation that has to be carried out by the employer which the Tribunal is responsible for monitoring when it comes to consider whether the employer has exercised its discretion fairly and reasonably. As Phillips J said in the case of Spencer v. Paragon Wallpapers Ltd [1977] ICR 301:
"Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?"
It seems to us in the circumstances of this case, bearing in mind the investigations that had been carried out prior to the original decision to dismiss, which was taken in December 1991, that it was open to an industrial tribunal, on the facts, to conclude that a reasonable employer could, at the appellate stage, have decided not to wait any further whilst a consultant's report was obtained and they were given no specific information as to when that was likely to be. I would add, for present purposes, that we do regard the Industrial Tribunal's apparent criticism of the union official's response that the matter would have to be referred to the solicitors before he could make a commitment on the Appellant's behalf for further discussions to take place between the doctors, as a little harsh. We, for our part, can quite understand why it was that the employee's representative at the appellate hearing was reluctant to agree to any such consultation between doctors without reference back to the solicitors who were on the record, bearing in mind that by this stage the employee's IT1 had been presented to the Industrial Tribunal.It seems to us that this appeal must be dismissed because there is no point of law that is raised within it. We are encouraged to take this view partly as a result of the Appellant's Counsel, very properly, accepting that if the employers had not, in this case, written the letter of 4th February 1992 and sought to encourage the employee to come and tell them about his present medical condition, it is unlikely that the Tribunal would have done other than to conclude that the dismissal, in the circumstances, was fair.Secondly, he rightly accepted that if the employers had made clear before the appellate hearing that they expected the employee to produce medical evidence the employers would have been entitled to have rejected the appeal and there could be no complaint of unfairness.It seems to us, with respect, that the employers did make it plain, in the circumstances, as to what they were looking for from the appellate hearing. The position was unusual in this case and nothing we say in this judgment is intended to form the basis of any precedent or citation in any future case to weaken the normal position which is that it is for the employer himself to take sensible and reasonable steps to satisfy himself as to an employee's medical and not simply to rely on the employee to do it for him.Accordingly, despite what we all thought was an able argument presented on behalf of the appellate, in this particular case we think that there is no point of law and we therefore dismiss this appeal.