Lawrence v London Central Bus Co Ltd [1996] UKEAT 194_96_2611

EAT
Lawrence v London Central Bus Co Ltd
[1996] UKEAT 194_96_2611 · 1996-11-26
The ground of appeal set out, four separate grounds, namely that the tribunal failed to consider the administrative resources of the employer's undertaking; secondly they failed to give sufficient consideration to the appellant's length of service; thirdly the tribunal misdirected itself in law in treating the appellant's failure to appeal against the respondent's decision to dismiss him as a matter which affected the fairness or unfairness of the appellant's dismissal; and fourthly no reasonable tribunal could have reached the decision that the dismissal of an employee with 23 years continuous service on the ground of capability, after less than 3 months absence from work, when he was likely to be fit to return to work within a short period, was fair.The facts may be very briefly stated and we refer to the tribunal decision for their findings. Mr Lawrence had been employed by the respondents or their predecessors in title, since 1971. He was interviewed by his employers on 13th June, and he was dismissed with 12 weeks notice on grounds of ill health. It is common ground that we need not be concerned with any technicality as to the exact date of dismissal. The dismissal was to take effect from 16th June.The tribunal in paragraph 4 of their decision set out their findings of fact. The applicant had been absent from 21st March 1995 with a painful right hip. He was seen a representative of the respondents on 1st May. She recorded in a letter dated 4th May he had informed her that his prospects of a return to duty as a driver were uncertain and he was anxious to consider alternative employment. That administrative assistant arranged for a consultation with the Company's medical adviser. The applicant continued to supply sick notes. On 10th May the medical adviser of the company wrote to the respondents. The terms of that letter are not set out in the tribunal's decision, but we are grateful that we have been able to see a copy of the document and the terms of letter by Dr Ian Palmer:
"I saw Driver Lawrence today and he continues to have difficulty with his painful right hip. He is, however, receiving physiotherapy and this is improving his condition. In view of the fact that this is his brake and accelerator foot I feel that he is unfit to return to work at the moment. I would estimate that in about six weeks' time he will be fit. If necessary we will be able to review at that stage."
On 18th May the applicant was interviewed by Mr Blair, and the tribunal accepted Mr Blair's evidence that at that occasion there was a general discussion about injury and the treatment and progress that was being made.On 13th June Mr Blair saw the applicant accompanied by his union representative. The contents of Mr Blair's recollection of that interview are set out in the letter he wrote on 27th June. It is to be noted that Mr Blair had not sought a review as suggested, or at least canvassed, in the doctor's letter of 10th May. Nor had Mr Blair acted in conformity with the general guidelines set out in the employer's own guidance notes for manager, which is at page 23 of the respondent's bundle. That says:
"The decision whether or not to dismiss an employee who is unable to work on medical grounds is a management one, but managers are required to inform themselves of the medical position of the employee and carry out sufficient investigation of his/her medical condition to enable an informed decision to be taken. The best way to do this is through the Company's Occupational Health service. The doctor will not tell you whether or not you should dismiss an employee who is sick, but will give you an indication of what is wrong and, most important, give you such advice as he is able on prospects for a resumption of work.
The upshot was that at the conclusion of that meeting Mr Blair dismissed the applicant, though, as we have noted for the reasons are not quite apparent, it was to take effect from 16th June.In its decision the tribunal note that there are two very different versions of that meeting given. The respondents version is set out in paragraph 4(e), the applicant's version, the appellant in this matter, is set out at paragraph 4(f). According to the version that the applicant gave he denied ever saying that he could not walk after three or four hours. He denied suggesting that he would be happy to leave his job. He said he had a mortgage and two children. He did not dispute that he was unfit on that day. He had not appealed against the decision to dismiss because his union representative told him the appeal would be heard in about two weeks and if he was not fit at the time of the appeal his dismissal would be confirmed. It is unfortunate that although the tribunal highlighted the discrepancy no where did it explicitly set out its findings of facts as to those two version of events.The tribunal went on to direct themselves in paragraph 7 of their decision as to the relevant legal issues. They correctly state that:
"... ill health is a potentially fair reason for dismissal as it related to the employee's capability to do the work he was employed to do. The question to be decided whether the Respondents acted reasonably in treating the ill health absenteeism as a sufficient ground for dismissal. The key to a fair dismissal was a fair procedure and the requisites were consultation with the employee, and medical investigation. The importance of discovering the true medical condition was stressed in East Lindsey District Council -v- Daubney [1977] ICR 566 . Proper consultation should include discussion throughout the illness, personal contact between employer and employee, consideration of the employee's opinion on his condition and consideration of alternative employment. Correct medical investigation required employers to inform themselves of the true medical position in order to make an informed decision. The first medical opinion sought should be that of the employee's own doctor."
It is pertinent to note that on any view of the matter, the respondents had not sought further information from their own medical consultant on the meeting of 13th June, nor other than the applicant giving his own version of what had happened, was there any evidence before the tribunal that information had been requested from the applicant's own general practitioner.We fully accept the arguments put before us by Mr Wagstaff that tribunals should be loath to intervene in findings which are supported by evidence that is brought before a tribunal. He has cited a number of cases. I am sure no disservice is done if I do not repeat them as they are well established authorities that appellate tribunals should not fall into the trap of finding an error of law because they may not agree with the decision of the original tribunal. We accept the submissions that he has made as to that matter.But in our view there is a serious misdirection by this tribunal in that the tribunal in terms states the matters in such a way that we think it is not only that they may be in error as to how they state the decision, but we fear that there is a real risk that they have been in error in how they have decided the matter.Under its conclusions the tribunal states thus:

"7. CONCLUSIONS

The Tribunal concludes that the Respondents acted fairly in dismissing the Applicant. The Respondents had a series of sick notes from the Applicant's GP as well as a letter from their own medical adviser. The last sick note issued on 19 May signed him off for a month. The Applicant's own evidence was that at the date of his dismissal he was unable to drive. The Respondents' own procedure for dealing with long term absence stated that if an employee said he was unfit to work the Manager should accept that and act accordingly. What we do not have [ is ] evidence of is any protest against his dismissal by the Applicant to anyone senior to Mr Blair or to his union. He did not appeal. Had he wanted to return to work he could have gone back to his GP for a prognosis either before dismissal or after dismissal and before an appeal. If the Applicant thought the letter of 27 June was not a true reflection of what had been said he should have tried to clarify things with Mr Blair or his union representative. We accept the Respondents' evidence that they tried to find alternative work but that there was nothing suitable. The Respondents acted reasonably in light of the information before them at the time. The complaint is dismissed."It is trite law to say that in the case of unfair dismissal what must be considered was the state of mind and knowledge of an employer at the time when they made the decision to dismiss. It is accepted that that decision to dismiss was taken at the meeting of 13th June. Unfortunately in the way in which the tribunal have dealt with this matter leads us to the view that there is a real danger that in approaching this matter they considered that the dismissal could be justified by matters that took place after the dismissal. The fact that the applicant did not protest against his dismissal; the fact that he did not appeal; the fact that he did not go back after his dismissal to his GP and seek to come up with a firmer prognosis, are not matters that can be taken into account in justifying the employer's decision to dismiss, which, on the findings of fact made by the tribunal, had already taken place. We consider that is a fundamental misdirection.It is easy to be critical of tribunal decision, and it is easy as it is unfair. Tribunals do a difficult and demanding job, and we do not for a moment suggest that every decision should set out every finding of fact, and as authorities show, it is quite open to a tribunal not to set out every subsidiary finding of fact.But we note in this case there is no history of the applicant's employment record noted by the tribunal. There is no finding at all as to the length of sick pay to which the applicant was entitled. We note that on the tribunal's decision little is known about the medical reports that were provided, but on the information that we have been given, it is quite clear that the medical evidence did not suggest a permanent incapacity. On the medical evidence from their own consulting Occupational Health adviser, the applicant was predicted to be fit for work within a fortnight of the meeting at which he was dismissed. We have heard that there was evidence before the tribunal in the applicant's bundle showing him making a favourable response to physiotherapy, but it does not surface as a matter in the tribunal's decision. It is correct that the decision whether to dismiss is a managerial one and not a medical one. But we consider that any tribunal considering this issue would want to examine carefully what was the state of knowledge and the predictions about the applicant's condition known to the employer when the decision to dismiss was made.In all the circumstances of this case, we consider that there is a fundamental misdirection contained in paragraph 7 of the decision. We think that that is compounded by the failure to set out clearly which version of events of that meeting on 13th June is accepted, namely the version of the employer at paragraph 4(e) or the employee at paragraph 5. Mr Moss accepts that if an Industrial Tribunal does find unfair dismissal there may be real issues as to compensation in view of the applicant's subsequent medical history.Because in our view there is a fundamental flaw it is unnecessary for us to consider the other grounds of appeal. We do not consider it appropriate to substitute a finding of unfair dismissal. We allow the appeal and remit it to a differently constituted tribunal to consider the matter afresh. In their consideration of the matter the tribunal will, no doubt, give such weight as they consider appropriate to the size of the respondent's undertaking and the length of service of the applicant in considering the fairness of the decision to dismiss.