Lister v Brighton & Hove Bus & Coach Co Ltd [1997] UKEAT 68_97_1605

EAT
Lister v Brighton & Hove Bus & Coach Co Ltd
[1997] UKEAT 68_97_1605 · 1997-05-16

JUDGE D M LEVY QC:

Mr Duncan Lister born on 10 May 1955. From 12 December 1988 to 17 January 1996 he was employed by the Brighton & Hove Bus & Coach Company Ltd or a predecessor ("the Company"), as a bus driver. On that date his employment was terminated, sadly because of his ill-health. He commenced proceedings by an Originating Application received by an Industrial Tribunal on 6 February 1996 complaining that he had been unfairly dismissed.The Company put in a Notice of Appearance on 5 March 1996 and there was a hearing before an Industrial Tribunal sitting at Brighton on 22 August 1996. At the end of the hearing a short decision was given. The unanimous decision of the Tribunal was that Mr Lister had been dismissed due to his inability to work because of his absence for sickness which related to the capability of him for performing work of the kind he was employed to do. Mr Lister's claim for unfair dismissal was dismissed. Extended Reasons were sent to the parties on 20 November 1996. Mr Lister appeared in person below, the Company having been represented by a Solicitor.From that decision Mr Lister has appealed by a Notice of Appeal dated 24 December 1996. We are hearing this appeal on the ex-parte procedure today. At the outset of the appeal Mr Lister sought to extend his Notice of Appeal by adding to it new items because of evidence which he had discovered since the hearing of the matter below. There has been no attempt to put that evidence by way of affidavit. We enquired as to what issue the new evidence was directed; it was evidence (we understand) about Mr Lister's disability which we suspect would have made no difference whatsoever to the decision and we refused him leave to amend his Notice of Appeal or to adduce extra evidence.As to the appeal itself, it is clear that Mr Lister feels very strongly that the Company has treated him badly. They have not, he said to us several times, treated him with the trust and good faith which an employee is entitled to expect. The grounds for which he says this are to an extent foreshadowed in the Extended Reasons of the Industrial Tribunal. So far as his illness was concerned, the employer had indicated that after he had seen his own doctor they would ask for him to see the Company doctor. In fact, when the Applicant's own doctor wrote a letter to the Company in these terms, the Company decided to get no further medical advice. The letter of his doctor was dated 2 October 1995 and read as follows:
"Thank you for your letter about this man.
As you know he has been off sick since 28.5.95 with depression.He is certainly better than he was but not fit to return to work. As regards working again as a PCV driver, I feel that this would not be possible in the foreseeable future, given the nature of his illness."Mr Lister feels very badly let down because his employer did not then, with that letter, pursue a further medical report. That was something for which the Industrial Tribunal criticised the employer, but at the end of the day found there was nothing wrong with it.The next matter on which Mr Lister complains, and complains bitterly, is what happened on about 16 November. A meeting had been arranged for Mr Lister to attend with his representative on 24 November. On 15 November, Mr Lister wrote saying that he was unable to confirm his attendance on that day due to financial and health concerns. We quote from subparagraph (i) of paragraph 4 of the findings of fact of the Industrial Tribunal:
" ... which he hoped might be resolved in time for him to travel to Brighton/Hove to meet Mr Ellis [that is the Company's representative]. He referred again to the possibility of meeting in Gateshead .."
That is a place where Mr Lister was then living, but most certainly he did not say he was refusing to attend at Brighton or Hove. What happened apparently, was that there was a meeting on 17 November, which was attended by Mr Lister's trade union representative, although the meeting had been fixed for 24 November and a letter was sent to Mr Lister which bore the date 16 November 1995 which commences thus:
"I was sorry that you were unable to attend the meeting I had arranged at Conway Street on Friday 17 November 1995, which was to discuss your absence and sickness."
It then went on to say he was dismissed.Mr Lister says that that letter dated 16 November shows a sort of conspiracy by the Company to get rid of him at any price. A meeting had been arranged for 24 November and there they are dismissing him on 16 November without any meeting at all. This was something which was investigated by the Industrial Tribunal. They found that there had been a mistake by the Company. The dating of the letter was something which was not fully explained, but the Industrial Tribunal certainly did not find there was any sort of conspiracy and on 20 November Mr Ellis of the Company wrote to Mr Lister in Cleveland in these terms:
"Please accept my sincere apologies for the error I made in respect of the meeting I had arranged to discuss your case of absence and sickness.
You are of course correct in saying the date for the meeting in my letter of 9 November was 24 November 1995.As arranged the meeting will be held at 1200 hours on Friday 24 November 1995.

Again my apologies for the error which was, as you say mine."

Mr Lister has submitted to us that, in fact, the Company had repudiated his contract by dismissing him wrongly and it was not up to them to rescind that repudiation. But it is quite clear to us that, in fact, both parties agreed that something had gone wrong on the 16th and 17th. There was a meeting in fact not on the 20th, but in due course on 1 December after which the decision was taken to dismiss him. His union representative attended that meeting. The letter dismissing him was sent on 6 December, terminating his employment on 17 January.Mr Lister's case to us is that certainly from 16 November, the Company had a closed mind and that he did not have a proper hearing with his union representative at all. He did not pursue his right of appeal because there was no point in doing that, but he says that the Company really did not treat him with the trust which they should have done.In our judgment, everything which Mr Lister has said to us was fully rehearsed before the Industrial Tribunal below and considered by them. At the end of the day, the Industrial Tribunal were not happy about the situation brought about by the dismissal letter, which was subsequently withdrawn. Because Mr Lister had not had a further appointment with the Company's own doctor, the Tribunal was not happy that best practice had been followed, but the question in paragraph 13, which the Tribunal says they have to ask as to fairness is, "whether the dismissal fell within the bands of reasonable responses by an employer". They say:
"Could we say that no reasonable employer would have dismissed in these circumstances?"
Earlier in the judgment they set out his employment record and answered the question for decision taking all the factors into account.We conclude that the Respondents acted fairly, having made an informed decision to terminate the Applicant's employment. The Respondents had the benefit of medical opinion from the Applicant's own doctor and consultation with the Applicant and his union representative which encompassed the consideration of alternative employment. There was no suggestion that the medical report was erroneous and the Respondent was entitled to make an employment decision in reliance upon it.We can well understand that Mr Lister is very unhappy about the decision. Indeed, he is very unhappy about the way the Company treated him, but we cannot decide questions of law on questions of sympathy. In our judgment, the Industrial Tribunal asked the right question and unhappily for Mr Lister came to the only conclusion they could have come to in the circumstances. In our judgment, they were bound to conclude on the facts that his dismissal was not unfair. We have to dismiss his appeal on the ex-parte basis. It has no prospects of success whatsoever.We have carefully considered the very well prepared skeleton arguments of Mr Lister and the grounds of appeal, but we cannot find the decision of the Industrial Tribunal in any way wrong and we cannot think that there is anything in the grounds of appeal which have any hope of success.