Warrington v Horsell Plc [1995] UKEAT 150_95_1105

EAT
Warrington v Horsell Plc
[1995] UKEAT 150_95_1105 · 1995-05-11
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Richard Warrington against the decision of the Industrial Tribunal held at Leeds on 6th and 7th October, and 7th December 1994.The Tribunal unaminously decided that Mr Warrington's claim for unfair dismissal against his employers Horsell Plc failed.The extended reasons for the decision were notified to the parties on 6th January 1995. Mr Warrington appealed by Notice of Appeal served on 16th February 1995.The purpose of the hearing today is to decide whether the Notice of Appeal raises a point of law that is reasonably arguable and justifies a full appeal hearing.Mr Warrington's case was fully argued by Mr Barber. Mr Barber argued the case for Mr Warrington in the Industrial Tribunal. He is also acting for him in other proceedings, relating to some of the matters under consideration in the Industrial Tribunal decision. He has a very full knowledge of the case. His submissions have been detailed. We are grateful for his assistance. The key question is whether they identify a legal error.To understand the detailed submissions, made under two main headings, it is first necessary to examine the background to the proceedings.The proceedings were brought by Mr Warrington on 15th February 1994. He claimed that he had been unfairly dismissed from his job as a printing plate preparer. He had been dismissed at the end of 1993 on grounds of ill-health from employment with the Company from June 1977. The employers manufacture litho printing plates for the printing industry, employing about 600 people in total.In the course of his employment, Mr Warrington began to suffer from deafness and an ear condition, "tinnitus". As a result he was absent from work from November 1992 until the termination of his employment on 31st December 1993.The Tribunal, in its reasons, referred to the long-term sickness policy introduced by the Company with the agreement of the GPM Union in November 1990 and also referred to the negotiation in April 1993 of a new sickness agreement with GMPU. They referred to Mr Warrington's commencement of absence due to "tinnitus" in November 1992. They referred to two medical reports and quoted the key passages from them. The first medical report was from Mr Warrington's own doctor. That was dated 5th November 1993. The other medical report dated 12th October 1993 was from the Company's doctor, Dr Warner.After the medical reports were obtained, Horsell Plc came to the conclusion that the long term prognosis for Mr Warrington being able to return to work was not good. There was broad agreement in the two reports about his condition.After receiving the reports, the Company held a meeting on 8th December 1993. Before the meeting copies of the medical reports were sent to Mr Warrington. At the meeting, at which Mr Warrington was represented by the his trade union representative, the medical reports were discussed. The Tribunal set out the matters that were discussed and the various points made.There was a further meeting on 13th December 1993. Again a trade union representative was present, on behalf of Mr Warrington, also a full-time trade union representative, Mr Bower. At that meeting the Company explained efforts to find alternative employment for Mr Warrington.Another meeting was held on 24th December 1993. At that meeting it was confirmed that no alternative employment was available and accordingly Mr Warrington's employment would terminate on 31st December 1993. He was told of his right of appeal. He appealed. The appeal hearing was held on 11th January 1994. The branch secretary of the GPMU. Mr Brock, represented Mr Warrington. The appeal hearing confirmed the decision to dismiss.The Tribunal referred to the submissions made to it on behalf of Mr Warrington, in relation to the new long-term health policy. After noting those matters, the Tribunal expressed its decision in two paragraphs, 14 and 15. Paragraph 14:
"14. The tribunal have to decide whether the applicant's dismissal was fair or unfair within the terms of the Employment Protection (Consolidation) Act 1978. Long term sickness is a ground for dismissal providing an employer has taken proper medical advice and has come to the conclusion that the applicant could not continue in his employment. This tribunal do not find that the respondents' procedure was flawed because the applicant began on stage 3 of the new procedure. His periods of absence justified them starting off at the stage 3 procedure and neither he nor his trade union representatives made any complaint about this. Secondly, the tribunal is satisfied that respondents acted on proper medical advice. They had a very full opinion and medical report from the company doctor, Dr Warner, and they also had a report from the applicant's own doctor, Dr Adams and the two reports supported each other. Although Dr Warner in the final paragraph of his medical report hinted at the possibility of getting a report from the applicant's specialist,[ that was a Dr Fenwick ] this was not taken up by the respondents and the tribunal do not consider that there was any need to obtain further medical report in view of the two reports, that is the reports from Dr Adams and from Dr Warner. The respondents reasonably concluded that the applicant could not return to his old job."
"15. So far as alternative employment was concerned, the respondents considered the whole range of options which could possibly be available and these are listed in exhibits R33 and 34 and the reasons why these could not be taken up. They also concluded that so far as the inspection department in particular was concerned that the applicant's condition would result in him not being able to concentrate sufficiently, in other words, that his concentration would be impaired and therefore he would be both unsuitable and at risk in working in the inspection department. Finally, the tribunal are satisfied that even if the respondents had started their new procedure at stage one, the conclusion would have been the same."
"In all these circumstances, and unfortunately for the applicant, a long serving employee, the tribunal have to dismiss this application."
The first and foremost question on this Appeal is what is legally wrong with those two paragraphs? The grounds, of appeal sets out a number of the points formulated more as an attack on the factual conclusions of the Tribunal, than as raising points of law. The grounds which are described as being error in law on the part of the Industrial Tribunal are these:
"1. The tribunal failed to take account of the fact that the applicant's illness namely his hearing loss and tinnitus were due exclusively to his exposure to excessive noise during his period of employment with he respondent company.
2. The tribunal refused to admit specialist medical opinion which had been available at and since the date of the dismissal.3.1 The tribunal did not give proper consideration to the overall fairness or otherwise of the decision to dismiss. In particular:3.2 The tribunal had a duty to look further than the existence of the long term ill health policy and as to whether or not it had been complied with by the respondent.3.3 The tribunal failed to take account of the applicant's age and length of service and the additional responsibility thereby imposed on the respondent and/or to consider whether the respondent had taken those matters into account when reaching their decision to dismiss.3.4 The tribunal failed to take account of the fact that the applicant's illness was caused in the respondent's employ and the additional responsibility thereby imposed on the respondent and/or whether the respondent had taken those matters into account when reaching their decision to dismiss.4. The tribunal was led to believe by the respondent (by a mistake which the respondent allowed to go uncorrected) that the decibel reading in the inspection department was 92 whereas it was 75 which was particularly relevant as it was the applicant's case that the inspection department was a relatively quiet environment in which he could undertake alternative employment, whereas the respondent's evidence was that the inspection department was too noisy and the tribunal accepted the respondent's evidence on that point.5. It is the applicant's case in the light of the above matters that the tribunal could not fairly reach the conclusions that it did namely, one that there was no need to obtain a further medical report from the applicant's specialist, two that the applicant was not capable of carrying out the alternative employment in the inspection department and , three that the dismissal was fair."Grounds of appeal worded in that way usually result in the matter being set down for a preliminary hearing, since the grounds did not formulate what can fairly be described as a point of law: one which asserts that the Tribunal misconstrued the relevant statutory provisions, or one that asserts that the Tribunal mis-applied the relevant provisions to the facts found.In his oral submissions with the help of an excellent skeleton argument, Mr Barber concentrated on two points which he said amounted to errors of law. His first point was that the Tribunal erred in law in concluding that it was not concerned, on a case of unfair dismissal on grounds of capability with the cause of the employees' incapacity or illness, and in regarding those as matters for proceedings for negligence and breach of duty in the High Court. The way in which Mr Barber put the point is that the Tribunal committed a legal error by failing to take into account and excluding from its consideration a matter that was relevant, namely whether and to what extent the employers were to blame for the condition of health which led to the dismissal of Mr Warrington.On that point, we are of the view that there is no error of law. The legal position is correctly stated in Harvey at paragraph [1203.01]:

"(a) Ill health caused by employer's treatment

[1203.01]

Sometimes the ill health may have been caused by the conduct of the employer. However, this does not mean that a dismissal of the employee is thereby unfair. As the EAT (Morison J presiding) held in London Fire and Defence Authority v Betty [1994] IRLR 384 the only question is whether given the employee's medical condition (however caused) the dismissal was fair having regard to the employee's medical condition and the enquiries and procedures which the employer made and used before deciding to dismiss. [ The highest that this point can be put, is in the last sentence of that paragraph ] ... that the fact that the ill health was caused by the employer might justify a tribunal requiring the employer to demonstrate extra concern before implementing a dismissal."In our view, there is no error of law in the Tribunal's approach that, in deciding whether the dismissal was unfair or fair, it failed to consider the cause of the illness. So far as the Employer's conduct in causing the illness is concerned the only relevance, as stated in Harvey, is that the employer might be expected by the tribunal to have demonstrated extra concern. From reading the full reasons in this case, it is clear that the Employer did demonstrate extra concern. This was not a case of dismissal on the basis of one medical report or on the basis of conflicting medical reports. It was not a dismissal without consultation and discussion of the medical reports. It appears to us that at every stage the Employers behaved as a reasonable employer would have done: Getting two medical reports, discussing them with Mr Warrington and his representative, looking at the question of alternative employment. It does not appear that there are any grounds for saying that lack of extra concern has been demonstrated by an employer, who is alleged to be, to some extent, responsible for the medical condition of the employee. We reject that ground as unarguable in law.The second ground, is that it was perverse of Tribunal to conclude that, in these circumstances, a reasonable employer would have dismissed. On this aspect of the case, Mr Barber said that the employers had failed to take proper instructions, or give proper instructions to the doctor on relevant matters. He went into some detail about the wording of the reports, about alleged inconsistencies, and other matters which he submitted would have caused a reasonable employer to raise more specific medical issues before making a decision to dismiss. He advanced the case on this point along the lines set out in paragraph 6 of his skeleton argument. He said, on the question of medical consultations, that the Tribunal concluded that the employers had acted on proper medical advice; that they had the two reports which had been mentioned, and the reports supported each other. Mr Barber's submissions on this is that the Tribunal had not carefully considered the medical evidence. They dealt with it in a peremptory manner and had failed to identify properly the medical issues so as to be able to reach a reasonable and logical conclusion as to whether an opinion should be obtained from a specialist. Mr Barber listed nine specific matters which he described as medical issues in the case. He submitted that not all of those issues had been identified in the two medical reports. Those which had been identified were confused. He submitted that no reasonable Tribunal, having properly considered the matter, could have reached the conclusion that it did on the question of the medical consultations. He argued that the Employer was under a duty in this case, given all the circumstances relating to the employee and the nature of his illness, to seek an independent opinion, either themselves or through one of the doctors, from the specialist, Dr Fenwick. Dr Fenwick was referred to in both the doctors' reports. That is the second main point argued on the appeal. In our view, it is not arguable point of law. In our view, the correct legal position is that summarised in Harvey [1230]-[1240]:
"Clearly in most cases an employer who dismisses in accordance with medical advice will be acting fairly. [ That is the position prima facie here. It goes on to say: ] However, the employers may have to satisfy the tribunal that the relevant medical expert was properly and fully advised as to the relevant material. If all relevant material was not put before him, the tribunal will be entitled to hold that the investigations have been inadequate and that the dismissal is accordingly unfair. [ The authority for that is a decision of Popplewell J: ] (see Ford Motor Co Ltd v Nawaz [1987 IRLR 163 [1987] ICR 434, EAT). [ And then they conclude ]. Moreover, as that case shows, any doctors' reports and the material on which they were based can properly be the subject of discovery where the fairness of the dismissal is in issue."
The difficulty with Mr Barber's arguments on this point is that the question whether the employers acted reasonably in dismissing Mr Warrington in these circumstances is a question of fact. The Industrial Tribunal carefully considered all of the various stages the employer went through before making the final decision to dismiss Mr Warrington. Their conclusion was, that the decision to dismiss was one that a reasonable employer could have made. In those circumstances we are unable to fault it. The appeal is dismissed.The facts of each case are different The decision of the Tribunal must be on the basis of the facts found in the particular case. If the facts here had been different, the result might have been different. If, for example, at the meeting to discuss the medical reports, the trade union representative had sought to question the medical reports, and asked, for example, that a specialist opinion be obtained from Dr Fenwick, and the employers had then refused to do that, there might , (we can say no more than that) be grounds for arguing that the employer's decision to dismiss was premature, that a reasonable employer would have sought another opinion before making a decision to dismiss.But those were not the facts of this case. In our view, there was nothing unreasonable in the way in which the employers conducted the procedure. It is impossible to say that the Tribunal's decision is a perverse one, in the sense that, no reasonable tribunal would have reached this view.For all those reasons, our conclusion is that neither of the points argued by Mr Barber in the oral argument this afternoon is an arguable point of law. The Appeal will be dismissed.