Yorkshire Bus Group Ltd v Kahut [1996] UKEAT 344_96_1311

EAT
Yorkshire Bus Group Ltd v Kahut
[1996] UKEAT 344_96_1311 · 1996-11-13

JUDGE D M LEVY QC :

We have before us an appeal by Yorkshire Bus Group Ltd ("the Appellants") against a decision of the Leeds Industrial Tribunal following a hearing on 19 January 1996. The decision was sent to the parties on 6 February 1996. The application was by Mr Mohammed Kahut. He claimed that he was unfairly dismissed. The Tribunal held that Mr Kahut, the Respondent here, was unfairly dismissed.We also have before us an appeal and cross-appeal on quantum, which only arises if and so far as, we upheld the decision of the Tribunal below.We have been in some difficulties on the evidence, because there has been no request for the notes of the evidence to be produced for us at that hearing. However, as long ago as 22 May 1996 Mr Smith, who appears for the Appellants, wrote to this Tribunal with a copy to the then Solicitors for Mr Kahut stating:
"I now enclose a copy of the respondents bundle R1 which I would suggest should be entered in its entirety. However, as the originating application and notice of appearance are both included within this bundle it may well be that you consider it an unnecessary duplication as these documents are usually entered elsewhere in the EAT bundle. I would also wish for the witness statements of Mr Brian Fields and Mr Albert Wilson to be placed before the EAT. These were admitted in evidence before the Industrial Tribunal. I enclose copies of these witness statements."
Those witness statements are in our bundle and we have therefore had the benefit of reading them, but not knowing whether there was cross-examination on them and something very important turns on them, as I will shortly explain.We should say that Mr Kahut changed his Solicitors some time after May 1996; Mr Wicks, who appears for him, has only recently been instructed and he was not able to tell us whether or not Mr Smith's letter was forwarded by the former Solicitors to those who now instruct him. The position therefore is that, as no one sought them, we do not have the notes of evidence.The factual background is set out in the Extended Reasons of the Industrial Tribunal, most of which I shall read with some comments:

"EXTENDED REASONS

1. Mr Kahut was employed by Yorkshire Bus Group Ltd from 12 October 1978 until his dismissal on 21 July 1995 when he was dismissed for health reasons and he brings his application on the grounds that he was unfairly dismissed ... .(2) The applicant was represented at the hearing by Miss Kenworthy, Solicitor and the respondents were represented by Mr French, an Employment Consultant. "I interpose to say that neither of those representatives, of course, appeared before us today. To continue:
"... The facts are that the applicant began his employment with the respondents then known as the Yorkshire Woollen District Transport Company Limited on 12 October 1978 as a PCV Driver ... . He was off sick during 1992 and 1993 on occasions due to back pain and that got worse and from 5 October 1993 he had a continued period of absence. On 10 October 1994 Mr Field the General Manager sent a letter to the applicant telling him that his name had been placed on the company's special register because his absence from work had exceeded 12 months.
3. The company have an agreement with the Transport and General Workers Union which is outlined in full in exhibit 10 of the respondents bundle and that is an agreement that employees who are absent for sickness for periods exceeding 12 months go on the special register. The agreement specifies that staff whose sickness period reaches 12 months should be placed on a special register and at that time any outstanding entitlements such as holiday pay will be held up and employees will only retain their contractual rights to continuity of employment and seniority when work is resumed. The possibility of employees returning to work when on the special register are reviewed every January and July and where it is found that a return to work is unlikely in the foreseeable future the employee is notified in the presence of his union representative that it is Management's intention to take his name from the special register and terminate his employment.4. Early in January 1995, Mr Field the general manager, arranged a meeting with the applicant which took place on Wednesday 18 January 1995 and that is set out in the respondents documents. At the meeting on 18 January, Mr Field was present, and the applicant and Mr Wilson his Union Branch Secretary and at that meeting the applicant said that he felt that he would be able to resume his duties some time in March. Mr Field considered that and wrote a letter to him on 25 January in which he said:-
'I refer to our meeting at Heckondwike on Wednesday 18 January 1995 regarding your position on the special register. At the meeting you stated that you will be able to resume your duties some time in March. As a result I am willing to give you the chance of resuming work but if however you are unable to drive as a result of your back problem we will review the case again.'
5. In March, Mr Field arranged for the applicant to see the Company's Medical Officer Dr Medley to see if he could say whether or not he was fit to resume driving and on the 16 March by a letter Dr Medley confirmed that the applicant had made good recovery from his illness, he had had back surgery and he was fit to resume as a PCV Driver forthwith. Because of this Mr Field agreed for the applicant to recommence work in the training department. It is standard practice that drivers who have been away for a long period of absence must start in the training department and so the applicant started there on 22 March. He found it too much for him and after 3 days he was suffering from back pain and he went absent again and in fact never returned to work.6. As he had gone off sick Mr Field again reviewed the position in July and that was part of the 6 monthly procedure under the special register. There was a meeting on 19 July attended by Mr Field and the applicant, Mr Wilson and Mr Webber, the Union representative. The applicant was asked when he thought he would be able to return to work and he replied because of his back problem he had no intention of coming back although the applicant has denied that he said that he had no intention of coming back. Anyway he was off sick and he never actually returned to work."I pause there because there is one particularly important passage in one of the witness statements which we think is particularly relevant. One of the witness statements was Mr Albert Henry Wilson, who was the TGW Branch Chairman at the appropriate branch. At page 2 of his statement, page 24 of our bundle, there is this paragraph:
"On 19 July I and my colleague Mr Webber, who was at the time the TGWU Branch Secretary, had a meeting with Mr Fields at the end of which he asked us both to say to attend a review interview with Mr Kahut. Mr Fields asked Mr Kahut when he anticipated he would be able to return and he replied that he had no intention of coming back as his back condition left him unable to drive ."
Given the final sentence in the witness statement of a witness for Mr Kahut, we would have thought it would have been up to the Tribunal to make a finding of fact of what was said at the meeting regarding Mr Kahut's intentions, notwithstanding that Mr Kahut had denied that he made the reply attributed to him.. The sentence, which is read out in the Extended Reasons, does not make clear, beyond peradventure, what were the findings of fact and this is something which is profoundly unsatisfactory, because it is obvious to us that what Mr Kahut is said to have said was very important, in so far as his employers would have to consider the position which he adopted.We continue with the Extended Reasons:
"7. Because of his continuing absence Mr Field decided to terminate his employment and told him that he would be entitled to various statutory entitlements. At that stage the applicant enquired about entitlement to severance pay and the Best Ill Health Retirement Scheme. Mr Field told him that severance pay only applied to employees whose employment is terminated due to permanent ill health. Dr Medley was consulted and said that having passed the applicant as fit to drive in March he could not say that he was now permanently unable to resume driving in the future and that he saw no purpose in seeing him again because he had seen him in March and pronounced him fit to drive heavy good vehicles."
Again, I interpose to set out what was stated in page 2 of the witness statement of Mr Fields. He said this:
"The meeting was held on 19th July and was attended by myself, Mr Kahut, Mr Wilson and Mr Webber TGWU Branch Secretary. I asked Mr Kahut when he anticipated he would be able to return and he replied that in view of his continuing back problem he had no intention whatsoever of coming back [that of course is consistent with what his trade union representative reported as being said at the meeting]. In the circumstances I advised Mr Kahut that we would have no alternative than to terminate his employment and that I would arrange for him to be paid his statutory entitlement to 12 weeks pay in lieu of notice. Mr Kahut asked me if he would be entitled to Severance Pay and I reminded him that the Company's Severance Pay Scheme only applied to employees whose employment is permanently terminated due to ill health. I subsequently spoke to our Medical Advisor Dr Medley, who confirmed that having passed Mr Kahut as fit to drive in March he could not now certify that he would be permanently unable to resume driving in the future."
We do not know whether the difference in the wording, which appears in the Extended Reasons, appears from evidence which was given at the hearing before the Industrial Tribunal. To continue the Extended Reasons:
"8. Mr Field confirmed the decision to dismiss in a letter to the applicant and pointed out that he was not entitled to the severance pay nor indeed the Best Ill Health Retirement Scheme which is dependant upon employees having their employment terminated through permanent ill health.
9. The applicant was off ill from March when he returned to work for 3 days and found it difficult and was off work then until the termination of employment. He did in fact go to see his doctor who signed the sick note on 28 March giving him 2 weeks off work and presumably he got further sick notes along those lines because he did not return to work and there has been no suggestion that he was not covered by sick notes."We interpolate there to say that, if his own doctor was saying he was not fit to work there was evidence (by inference) before the Tribunal that the opinion of Dr Medley that he was fit to work was not accepted by his own doctor. In those circumstances, it seems to us, that it was open to a reasonable employer not to go back to their own doctor for a further opinion, but to accept the evidence of the employee's own medical practitioner. However, the Extended Reasons continue:
"10 The case for the applicant is that it was unreasonable to dismiss him in view of the medical report and the circumstances. Secondly, he was not properly consulted. Thirdly the question of alternative employment was not fully discussed and fourthly he was not told that he could appeal and as a result he did not appeal whereas if he had appealed he might not have been dismissed.
11. This tribunal has to decide whether there was a ground for dismissal, whether the respondents acted reasonably in the whole circumstances of the case including the carrying out of a proper procedure. It cannot be denied that the applicant was seriously sick with a back complaint and therefore as far as the dismissal is concerned there was a ground for dismissal on the basis of his incapacity to carry out his work as a bus driver. We have to decide not only whether there was a ground for dismissal but whether the respondents acted within the band of reasonable responses, in deciding to dismiss in the circumstances.12 This tribunal accepts that there was consultation and the tribunal find that so far as alternative employment was concerned even if there was no proper discussion there was no scope for alternative employment. The applicant was a bus driver and the firm are engaged in employing bus drivers, they do have office staff and other ancillary staff but the scope for alternative employment was very limited. We do not find that the company were unreasonable in not giving him or telling him about a right of appeal as was stated in his contract of employment. There is a grievance procedure but this was not relevant because it was not a grievance matter."We now then come to paragraph 13 of the Extended Reasons. This is the paragraph which Mr Smith criticises:
"13. What has concerned the tribunal is as to whether it was reasonable to dismiss at the meeting on 19 July 1995. At that stage the applicant was off sick but the company's medical advisor Dr Medley had in March pronounced him fit to drive. When he was approached on the telephone by Mr Field in July he said that he did not think there was any point in seeing the applicant again because he would not change his mind from what he had said in March. The question is whether it was reasonable to dismiss him at that stage when the company doctor, Dr Medley, had declared him fit for work in March and when he still had a public service vehicle licence. "
We respectfully pause to consider whether that question is the right one. The question is the one which had been set out in paragraph 11, "whether the respondents acted within the band of reasonable responses, in deciding to dismiss in the circumstances". There was medical evidence available to the Tribunal that the Respondent was thought to be unfit to work. He had only worked in fact for three days since March. He was saying he was unfit to work; there was evidence that his medical practitioner said this too. Further, the Respondent said he "was not going to come back to work". It seems to us that it might well have been within the band of reasonableness for the Appellants to have acted as they did. It is, in our judgment, an error for the Industrial Tribunal to find something completely outside the band of reasonableness, when demonstrably it is not.However, the Extended Reasons continues thus:
"13. If they had taken the company Doctor's advice then the applicant could have remained as an employee on the special register at no expense to the company. ..."
It seems to us that this sentence is very suspect indeed. If they had taken the doctor's advice, it might well have been that the doctor had said that the employee was fit to work. If he had, it would have been quite improper for them to keep the employee on the special register. Even if it was proper for him to remain on the register at no present expense for the Company, we ask rhetorically if there would have been no expense to the Company at all if it remained on the register for a further time under the period.The Extended Reasons continue:
" Under that special register there would have been a further review in January and then the matter could have been considered with a further report from Dr Medley as to whether or not he was permanently unfit."
That may be so if the sentence before is correct. The paragraph continues:
"Considering the advice of the companies medical advisor we think it was not within that band of reasonableness to dismiss on 19 July when in fact he could have been seen again in January of 1996 and then a decision could have been made. We find it was unreasonable to dismiss at that stage and therefore we find in favour of the applicant."
In our judgment, it was perverse of the Industrial Tribunal to find that the Appellants did not act within a band of reasonable responses in all the circumstances of the case. We should add that we have been referred to the decision of the Employment Appeal Tribunal in East Lindsey District Council v Daubney [1977] ICR 566 . We find nothing in the particular circumstances of this case to suggest the Company should have done anything more than it in fact did.We have also been referred to the decision in Rolls-Royce Ltd v Walpole [1980] IRLR 343, where, as we have been reminded, full account was taken of a passage in the judgment of Lord Denning MR in Retarded Childrens' Aid Society Limited v Day [1978] IRLR 128 at 130 which is quoted:
"The decision is entrusted in the ordinary way by Parliament to the Tribunal. I do not think that it would be right to upset them and have fresh hearings upon points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the Employment Appeal Tribunal should not interfere with their decision even though they would themselves have come to a different decision.
The minority member also refers to the dictum of Lord Russell of Killowen in the same case at page 130:'The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits of the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine toothcomb for some point of law'."Unhappily we all conclude, looking at the matter broadly and fairly, that the Tribunal has ignored Mr Kahut 's own evidence and that of his doctor when it reached the conclusion that the Appellants did not act within a band of reasonable responses. Further, the conclusion in paragraph 13 does not follow from the primary facts, which have been found, particularly the sentence "If they had taken the company Doctor's advice then the applicant could have remained as an employee on the special register at no expense to the company".In these circumstances, we feel that the proper course for us to take is to allow the appeal and to remit the matter for a fresh hearing before a differently constituted Tribunal.