Haines v West Sussex County Council [1997] UKEAT 871_96_1205

EAT
Haines v West Sussex County Council
[1997] UKEAT 871_96_1205 · 1997-05-12
MR JUSTICE LINDSAY : We have before us an appeal in the matter of Mr T. Haines against West Sussex County Council.We will briefly give the procedural position. On 15 May 1996 there was a hearing before the Industrial Tribunal at Brighton, under the chairmanship of Mr J.W.T. Walters, in proceedings in which Mr T. Haines, a former employee, brought proceedings against his erstwhile employer, West Sussex County Council. That hearing just lasted that one day and the decision was promulgated on 17 June 1996 and the decision was that the Applicant, Mr Haines, was not unfairly dismissed.On that first day Mr Haines was represented not by anyone with legal qualifications, as we understand it, but by his wife. Very shortly thereafter, there was an application for a review of that decision and the application for a review was made by Solicitors acting for Mr Haines and sets out, at some length, a much more analytical approach to the case than perhaps had been attempted at that first hearing. That was on 24 June.There was then a further hearing to consider whether there should be a review and if there should be, what should the result be of it, and that was on 11 October, before, of course, the same members and the review decision was promulgated on 12 November 1996 and it was that a review should be granted but that, on that, on the further hearing of the matter, the decision at the first hearing of 17 June was confirmed. That is the procedural position.What Mr Haines now does is that he appeals against the decision of the Industrial Tribunal promulgated on 17 June, which was, as I mentioned, that he had been not unfairly dismissed. The appeal by way of Notice of Appeal is in terms, in fact, directed only to the decision of 17 June but, it is far from clear that the issues are quite as separable as that might suggest between those raised at the initial hearing and those raised at the review hearing and the argument has ranged fully over both aspects of the case without any objection being taken. Consequently, we will consider the appeal to range over both matters that fell within the original decision and matters that fell within the review, without actually requiring any formal amendment to the Notice of Appeal.We need to set out the background facts. On 11 May 1937 Mr Haines was born, so he is now 60 years and a few days, but, at the time of the principal events we are concerned with, he was 57 and 58.On 7 September 1987 he began employment with the West Sussex County Council and he worked in the West Sussex Fire Brigade; his job description has some importance in the matter. He was employed as a general duties person. The purpose of his employment was "to provide general site and vehicle cleaning, transportation of equipment, mail and other related duties". And then, his duties and responsibilities were set out in more detail:(1) Cleaning of vehicles, (which, as Ms Gay, for West Sussex, has helpfully pointed out, in fact contemplated his driving between various premises in order to carry out that cleaning) and then(2) Transportation of equipment, stores and mail using Brigade vehicles, and then there are some other duties that do not concern driving at all or, at any rate, not as to any substantial part. And then "(7) A current driving licence is required for this post". Then there are some express Health and Safety requirements that are set out:
"You are required to refer to the contents of Brigade Order Health & Safety at Work No.1, General Policy, Section 2", and then there are practical applications of that, maintaining personal equipment, wearing appropriate clothing, reporting defective equipment and so on. And in General terms, at the foot, it says "
Any other duties as may be reasonably required, commensurate with the level of responsibility of the post".It may be noted from that that, on the face of things, there is no obligation upon Mr Haines to transport people. There are three categories mentioned of things to be transported, the equipment, stores and mail, and none of those would ordinarily include people. There is no suggestion in his job description that it would include what was then the HGV (that is heavy goods vehicles) or PSV, (that was public service vehicles) categories of vehicles and there is no mention in the requirement that he should hold a driving licence of it being an HGV or PSV licence. In context, the driving licence that is contemplated can only be what one might call an "ordinary" licence because, if the more exacting standard of an HGV and PSV licence is required, it is likely to be specifically required and, indeed, is likely to be a higher qualification that the employer can expect to have to pay for.So that, on the face of the contract, the sort of driving that was contemplated as being able to be required of him, be it reasonably under the general provisions or expressly, would be the sort of driving that can properly be done on an ordinary car licence and therefore, requiring only the standard of health and fitness that is contemplated by the granting and holding of a current ordinary driving licence. There is no requirement in the Brigade Order Health & Safety at Work No.1, General Policy, Section 2 that has been drawn to our attention that supposes any higher standard was required at that stage.Other duties could plainly be required of Mr Haines under the general provision that we read out but they could only be as were "reasonably" required and so that would exclude requiring Mr Haines to do something which he was physically or mentally unfit or otherwise unable to do to the employer's knowledge. That job description remained Mr Haines' job description throughout his employment.In 1992 it would seem West Sussex Council determined that it should have a "Driving Policy", and this needs to be looked at in a little detail. There is a document headed West Sussex County Council Driving Policy and, under paragraph A. "Objectives/Policy Statement", it says:
"1. The County Council is fully committed to the principle that all its employees who need to drive as part of their job must be medically fit to do so.
2. As part of this commitment, all employees whose jobs regularly entail driving a vehicle (other than a private car) will be required to satisfy medical standards similar to those required for PCV/LGV licensed drivers (whether or not this is a statutory requirement for them) and to undergo medical examinations at regular intervals."I should mention that PCV/LGV is the more recent nomendature; that stands for passenger carrying vehicles / large goods vehicles but roughly, or even precisely perhaps, corresponds with the earlier HGV/PSV.Going on in the Policy, it says:

"3. These arrangements will be introduced on a phased basis from 1992."

Then there is a system for medical examinations. Paragraph 2 says:
"Each Chief Officer/nominee will ensure that all the drivers concerned are informed in writing:- (a) of this policy and scheme and (b) that if there is any change in their health which might affect their driving, this must be reported to the Chief Officer/nominee immediately and will then be referred to the Occupational Health Service."
Paragraph 3 contemplated that drivers concerned would undergo medical examinations at various ages and, so far as we are concerned, they were to be within three calendar months of attaining 55, 60 and 65.There is reference to the medical examinations being normally undertaken by the Occupational Health Physician and/or Occupational Health Nurse, but the policy says they:
"... may be undertaken by the driver's own general practitioner, at the discretion of the Chief Officer concerned."
Paragraph 5 reads:
"Continuing to drive a vehicle (other than a private car) for the County Council will depend upon the driver's meeting the health standards determined by the Occupational Physician, and to his satisfaction."
And paragraph 6 reads:
"Drivers who fail to meet the necessary standards will be re-deployed to non-driving duties with their agreement, if practicable."
The Policy points out that, if that could not be effected, then dismissal would necessarily have to be considered. And under C: Implementation:
"1. Medical examinations for those drivers whose principal duty is to drive a working vehicle or to drive passengers or goods will be introduced on a phased basis from 1992."
So the will to introduce a new policy existed in 1992. It was going to come in, on a phased basis, in relation to drivers whose principal duty was to drive a working vehicle and so on. But quite what the phases were to be, whether they were simply relative to medical examinations at the various ages or relative to any other scheme of introduction is not entirely clear. But what is clear, is that the driving policy never came to Mr Haines' attention. The Industrial Tribunal said this at paragraph 5:
"5. In 1992 West Sussex County Council introduced a driving policy under which all employees whose jobs regularly entailed driving a vehicle other than a private car would be required to satisfy medical standards similar to those required for PCV/LGV licensed drivers (whether or not this was a statutory requirement for them) and to undergo medical examinations at regular intervals. It was this policy that Dr Brownfield was following in his recommendations."
That last sentence will have to be dealt with in the future. Therefore, there is a policy. Quite what is a "policy" and what does one do, as an employer, to adopt it? Ms Gay, who has argued the case on behalf of West Sussex County Council, says that an employer must be reasonably sure its employees are in reasonable states of fitness for the respective jobs they are concerned to carry out, so that the employee is prevented from injuring himself and prevented from injuring others.Without discussing in detail whether there is such a duty upon an employer and assuming that to be so without deciding it, there therefore has to be some objective reasonable state of fitness that can reasonably be required by an employer. What is that reasonable state of fitness? Plainly, it will greatly vary from job to job but here, as will later transpire, what is strictly laid down by the DVLA in relation to the health and other requirements of drivers is set out in a document to which we will later refer and that document sets out what appears to be an objective standard thought by the body given the task by the legislature, to be a compilation of what it is reasonable to require, in health terms, from drivers.However, as will appear as we move forward, what the Driving Policy of West Sussex purports to introduce is something that represents a higher standard than that DVLA standard. No one can doubt that it can be very appropriate indeed for an employer to have aspirations to have higher standards than are required of the nation at large. But, if he is to have and to require his employees doing particular tasks to come up to a standard that is higher than that is required for the nation at large doing those tasks, is it not the case that he has to introduce that higher standard to the knowledge and with the consent of the employees concerned? Does it not have to be made a contractual provision? If the duty upon the employer, which Ms Gay supposes is met so long as a reasonable state of fitness is exhibited by the employee, then surely the DVLA standard would here suffice to meet it and if a higher standard is to be required then some contract has to be pointed to which imports it, if the imposition of some higher standard is to operate to the employee's disadvantage. That argument, at any rate, will become clearer as we move forward through the events because on 25 March 1995 Mr Haines suffered a transient ischaemic attack, best described for our purposes as a small stroke, and he was off work until May. It was arranged that he should see the Consultant Occupational Physician used by the County Council, a Dr R.N. Brownfield. On 22 May 1995 he saw Dr Brownfield and that very day the doctor reported to the employer.The note that the doctor wrote was that:
"As you know he [Mr Haines] has been away from work since 29th March, when he suffered a Transient Ischaemic attack, from which he apparently made a full recovery within about 30 minutes."
There is then a reference to him going elsewhere, to the local hospital and to the Neurological Department. Dr Brownfield continues:
"On examination he did appear to have made a complete recovery and to be symptoms free, but I did find an abnormality on examination, which may account for his attack.
I think it will be safe for him to return to work and carry out the normal duties of his post, with the exception of driving. At the present time there is no reason why he should not hold a private driving licence, but I would not be prepared to pass him fit for professional driving until we have the results of his tests at Guildford."That would represent something of a blow to Mr Haines because it is common ground that some 75% of his time in employment was spent driving, although driving only at the lighter end of the total range of vehicles, as we shall explain. What the Industrial Tribunal found on that subject was that driving duties constituted normally some 75% of his work.Dr Brownfield, having made that report, arranged to make contact with Mr Haines' own GP and on 22 June Dr Brownfield reported again to the County Council:
"Further to my report of 22nd May, I have now had a letter from the General Practitioner, who confirms that Mr Haines did have a Transient Ischaemic Attack which would bar him from being a professional driver for at least five years after the event. I do not yet have the results of his tests, but unfortunately even if these prove negative, this will not alter the situation. He therefore remains fit for his normal duties with the exception of all professional driving, although he may hold a private driving licence."
That is, in some respects, open to criticism or doubt. Dr Brownfield says that the transient ischaemic attack would bar him from being a professional driver for at least five years after the event. There is no DVL requirement such that a transient ischaemic attack of itself, and relative to a man who drives only Group 1 vehicles, would bar him from being a driver for at least five years after the event. Quite what Dr Brownfield had in mind as constituting a "professional driver" is unclear. It is the case, though, that the policy that West Sussex County Council Driving Policy, were it to then applied to Mr Haines, would have barred him from being a professional driver for at least five years after the event or, at any rate, arguably could have done.On 19 July Mr Haines went again to see Dr Brownfield and again Dr Brownfield reported to the employer. He said:
"I now have the benefit of the final report from the hospital, which confirms that Mr Haines did have a small stroke. Under the circumstances he will not be able to hold a professional driving licence for at least five years although he will be able to continue to hold a private driving licence. I gather that his work involves at least 75% driving and will therefore not be capable of carrying out the greater part of his duties and unless it is possible to find him alternative work, I would be prepared to support his retirement on the grounds of medical incapacity."
Again, the criticism to which that is vulnerable is that it is no requirement of the DVLA that would bar Mr Haines, in the circumstances of his having had a small stroke, from holding a professional driving for at least five years. The requirements of the DVLA, so far as concerns a Group 1 driver, the group covering the vehicles which Mr Haines in fact drove, would not require him to be barred for five years. The letter goes on:
"He tells me that he is considering applying for the Hydrant Inspectors post. This would involve him driving a small van, which I think he can reasonably do on his private driving licence as he will only be using this to transport himself from place to place of work rather than driving professionally which he would be doing if he is transporting people, materials or particularly driving the general purpose lorry."
There is a reference there, which is to be noted, to his "transporting people" which puts in play whether, contractually, he could have been required to drive people at that stage. That letter of Dr Brownfield of 19 July is consistent with Dr Brownfield's evidence to the Industrial Tribunal which was given by way of written statement. The doctor was not present and was not, of course, cross-examined. But there, what the doctor said was that:
"From discussions with Mr Haines and from information provided by the Fire Service, I understood that Mr Haines' driving duties formed at least 75% of his work and involved driving a 3-ton general purposes lorry, transporting materials and equipment and occasionally Brigade personnel. In line with the County Council's policy over a number of years (subsequently formalised in their Driving Policy) the County Council requires higher levels of medical fitness for this type of driving than those required by the DVLA for private driving purposes. The levels of medical fitness on which I base my decisions for professional/vocational drivers are as laid down in guidance for Medical Practitioners issued by the Medical Advisory Branch of the Driver and Vehicle Licensing Agency. I concluded that Mr Haines would be unable to carry out his driving duties for the Fire Service for at least five years. I was therefore willing to support Mr Haines' retirement on grounds of medical incapacity, if alternative work could not be found for him (my memorandum of 19th July, 1995 refers)."
On 24 August 1995 the County Fire Officer wrote to Mr Haines and said, among other things:
"As 75% of your work as a General Duties Person involves driving, this prevents you from carrying out the greater part of your duties. I do not have any suitable alternative work available for you within the Fire Brigade, so unfortunately, I have no alternative but to issue you with notice of dismissal on the grounds of ill-health."
Then, there is a reference to notice and so on and there is talk about the possibilities of re-deployment in the Fire Service or outside the Fire Service but still within the employ of the County Council. It is not, for present purposes, necessary to explore the attempts that were made to find another job for Mr Haines, but it is necessary to explain the references to the DVLA's approach to medical risk in drivers. We have been supplied with a document, in fact rather more of it than had the Industrial Tribunal, that is headed "For Medical Practitioners - At a Glance Guide to the Current Medical Standards of Fitness to Drive, Issued by Medical Advisory Branch, DVLA, Swansea". This requires some attention. It is called "At a Glance Booklet" and it says:
"The 'At a glance' booklet deals with medical standards for driver licence entitlement for motor cars and motorbikes ie the ordinary driving licence, or Group 1 as well as large lorries or buses ie the vocational driving licence or Group 2 licences. Before 1 April 1991, the vocational licence (Group 2) was known as HGV/PSV but is now known as LGV (Large Goods Vehicle) and PCV (Passenger Carrying vehicle)."
It is pointed out that that is to harmonise with European Community legislature. It continues:
" 'At a Glance' [referring to the booklet] takes into account recent changes in legislation and advances in medical assessment against the background of the need to ensure public safety and enable drivers with medical disabilities to know when they should stop driving. the doctor, in advising a patient about (un)fitness to drive, may find the index useful.

The Road Traffic Act 1988 defines relevant medical disabilities ..."

And then it goes on:
"... and any other disability likely to be a source of danger to the public. If an applicant or driver has a relevant disability the Licensing Authority must revoke an existing licence or refuse an application."
In fact, it would seem that Mr Haines' licence was never revoked, although his position does seem to have been reported. A little later it says:
"A driver with a prospective disability is able, in law, only to hold a short period licence of 1, 2 or 3 years."
In fact, the licence that Mr Haines had was never prescribed to be only for 1, 2 or 3 years. And then comes, a little later, a sentence which Ms Gay has greatly relied upon:
"In general higher standards of medical fitness are required for Group II entitlement, which also requires full Group 1 entitlement. Vocational standards apply equally to LGV/HGV and PCV/PSV licences. Drivers of emergency vehicles, taxi-drivers and other professional drivers are recommended by the Medical Commission on Accident Prevention to attain these standards."
And then, the note goes on:
" 'At a glance' [referring to the booklet] incorporates the advice of the Secretary of State's Honorary Medical Advisory Panels and other professional bodies. It is designed for use as a convenient practical reference in the consulting room .."
This passage about the Medical Commission on Accident Prevention is not altogether easy to comprehend. It seems to have recommended (and one notices it is only a recommendation rather than a prescription) that higher standards of medical fitness should be required of what are called "professional drivers", a category that includes drivers of emergency vehicles and taxi drivers. Quite what a "professional driver" is intended to comprehend is not at all clear. It might simply be "every driver who drives as a profession", but that would include chauffeurs of private cars, for example, which would hardly seem to require a higher standard than Group 1. So quite what was in mind of the Medical Commission on Accident Prevention we cannot be sure. But what we can be sure of, because the later pages show it, is that whatever that recommendation is, it does not form part of the tabular advice which is then given over a series of pages by the DVLA. In other words, there is a distinction between what the DVLA is requiring and what would seem to be a higher standard that is recommended by another body, the Medical Commission on Accident Prevention.When one turns to the table that occupies several pages and describes in detail various disorders and conditions, one sees that the position relative to transient cerebral ischaemia is regulated according to whether the driver is driving Group 1 vehicles or Group II vehicles. If he is driving only Group 1 vehicles then what the booklet suggests is:
" At least one month off driving after the event. When clinical recovery is fully satisfactory driving may restart. May be issued with unrestricted Till 70 licence provided there is no significant residual disability."
It is also clear that, even if the strokes are recurrent and frequent then, so long as Group 1 is the only type of vehicle a driver is going to drive, the requirement is only that driving should cease until the attacks have been controlled for at least three months. That is what the DVLA prescribes for those who drive Group 1 vehicles. Group 2, however, is much more exacting because there, for the very same medical condition, transient cerebral ischaemia leads to this:
"Recommended refusal or revocation. Provided recovery has been full and complete and 5 years free of recurrence, specialist assessment may be undertaken to determine whether driving may restart, ie the driver is not considered at exceptional risk of further vascular event either cerebral or coronary, and driving performance is not likely to be impaired."
It would seem inevitable that, when Dr Brownfield speaks of there having to be a five year period during which Mr Haines should not drive, that he either has in mind what the DVLA required for Group II drivers or, alternatively, that he had in mind what was a recommendation only by the Medical Commission on Accident Prevention, namely that professional drivers, whoever they might be, even within Group 1, should attain Group II medical standards of fitness. But it is in any event hard to describe DVLA's tables setting out medical standards of fitness. What they are describing are what are the proper and required consequences of particular degrees of medical unfitness, in the way that we have described. There is express provision for re-licensing but, as I mentioned earlier, it transpires that his licence was not actually taken from Mr Haines. He sent it to the Authority because he thought it was the right thing to do, to the DVLA, and it was returned to him. It was never, in fact, revoked and then restored. There was no need to restore it because it had never been revoked.So the position was that, by 24 August, Mr Haines had an unendorsed ordinary licence from the DVLA; he satisfied the DVLA health requirements and, within those requirements, was able to drive all vehicles within the range of an ordinary Group 1 licence, which was the only kind of licence that he was required, by his job description, to have and the case was also that the vehicles which he drove for West Sussex were exclusively within the Group 1 category.It is to be remembered that Dr Brownfield had noted that Mr Haines had apparently made a full recovery from his small stroke some 30 minutes after it had occurred and that he was found to have been symptoms-free. It is common ground before us that, for the purposes of his job, an ordinary Group 1 licence sufficed and the ordinary Group 1 licence was what he had.Against that background, Mr Kinsky for Mr Haines, argues that there are only two possible routes by which the Industrial Tribunal could properly have found in the employer's favour, and he then seeks to dismantle each of those two routes. The two routes he describes as the "contractual route" and the "assessment of risk route" and it is worth looking at each of them briefly.The contractual route, to take its formulation from Mr Kinsky's skeleton argument, anticipates that the County Council will argue that after Mr Haines' stroke Mr Haines was incapable of complying with the requirements of his contract of employment. The argument continues, however, that the County Council paid no attention to the contractual route. In his skeleton argument Mr Kinsky says:
"If, at the time of the Appellant's engagement in 1987, the question 'what kind of driving licence?' had been asked, the answer would clearly have been 'an ordinary one', and therefore that the Appellant only needed to be fit enough to hold an ordinary licence.
The question therefore arises as to whether the Respondent's 'Driving Policy' had any effect on the contractual relations between the parties such as to require the Appellant, as a matter of contract, to be fit enough to hold a professional driving licence, even though there was no need for him actually to hold such a licence."So it does become a primary question whether the Driving Policy became imported into Mr Haines' contract. There was no finding by the Industrial Tribunal that it did. What the Tribunal held was this:
"Due to an administrative error the County Council had not informed the West Sussex Fire Brigade of the new driving policy because they were unaware that there were drivers of fire brigade vehicles other than fire engines. As a result, the Applicant was not informed of the policy and did not undergo any of the 5-yearly medical examinations that were required of all professional drivers."
So the position was that the policy was not promulgated to the Fire Brigade nor to Mr Haines within the Fire Brigade, still less agreed by Mr Haines to relate to his case. If one asks whether all the surrounding circumstances here support an inference that Mr Haines had intended to become contractually bound by the Driving Policy then on the evidence adduced the answer could only be "No". I phrase that last sentence in that way, in the light of observations in Harvey at volume 1, section 8, paragraph 260, dealing with a quite different kind of policy, but the comments there might be of general application. But if, then, the policy did not have contractual force, one returns to Mr Kinsky's skeleton argument:
"If that is right, [in other words, if the policy did not have contractual force] the Respondent could not demand of the Appellant as a matter of contract that he comply with the terms of the Driving Policy and could not fairly dismiss him because he did not. Nor could the Tribunal properly conclude that the dismissal was fair simply because of the terms of the Driving Policy. A fair dismissal would have had to include an assessment of the risk involved in allowing the Appellant to continue to drive."
That last passage moves on to the second of Mr Kinsky's heads, the assessment of risk route, but it does seem to us that, if the case was that the Driving Policy did not apply to Mr Haines as a matter of contract then no more could be required of Mr Haines than such as would entitle the employer to have discharged his (assumed) duty in being reasonably sure that his employee had attained a reasonable state of fitness for the job concerned. Moving on from that, it seems to us not possible to argue that someone who satisfies the Group 1 standard required by the DVLA and who is required to drive only DVLA standards, has not exhibited a reasonable standard of fitness for the particular task and to that extent has discharged the employer from such duty as would be required of him under the implied form of duty which Ms Gay has supposed.Turning to the quite separate assessment of risk route, here Mr Kinsky referred us to Converfoam (Darwen) Limited v Bell [1981] IRLR 195. It is unnecessary to set out the facts. The first argument dealt with at length in the Employment Appeal Tribunal before Browne-Wilkinson J. and the two members sitting with him, concerned frustration as a doctrine which puts an end to a contract. The EAT held that the employee's heart attack in that case had not led to frustration. Then, there was this observation:
"Unless the nature of the employment is such that the risk of illness is of such importance as to make it unsafe for the employee to continue with the job, the risk of an illness cannot, in our view, amount to a ground for fairly dismissing him. The case of a sole wireless operator on a sea-going ship who had a risk of heart condition, is quite different from the case of a works manager on land in a factory with a heart condition."
In other words, there has to be an individual investigation of the illness in each individual case and of what is properly to be required of the job concerned. The licence which was held by Mr Haines was not only the only kind of licence which his job description required him to have but it also entitled him to drive vehicles up to, for example 7.5 metric tonnes, and categories including minibus operation up to (I think) 17 passengers. In practice, he did not drive any vehicle more heavy than a 3 tonne van.Mr Kinsky's argument proceeds:
"In the light of the fact that the DVLA takes the view that the victims of minor strokes are healthy enough to hold (and use) ordinary driving licences, the Appellant argues that it cannot be obvious that to allow a victim of a minor stroke to continue to drive is too risky. The Respondent was therefore required to assess the risks involved in allowing the Appellant to continue to do his job, and balance them against the loss that would be caused to a man in the Appellant's position by dismissing him."
In other words there has to be, where safety is not quite an obvious consideration, a particular consideration that has in mind the particular duties required of a man and his particular state of unfitness or fitness.We see considerable force in these arguments of Mr Kinsky, but one then has to ask, if the contract route was not used by the Council and if the assessment of risk route requires particular examination of the given facts relating to the particular case, was either of those satisfied by what was done in this particular case?In its first decision the Industrial Tribunal did not deal with the contract route at all and that was hardly the Tribunal's fault as the point had not then been taken. The Industrial Tribunal concluded that the case was one of incapability, ruling the incapability to be "the medical unfitness to carry out the duties of professional driver". But, given that Mr Haines held and satisfied the health requirements as to an ordinary licence permitting him to drive the vehicles that his contract required of him, we see it to be impossible to hold that Mr Haines was offering performance short of what his contract required of him. We do not see that the contract route avails the employer in this case. Every aspect of driving which the contract requires of Mr Haines could at all material times have been done by him except for the passage when he was actually away from work sick. Once he returned for work he was able to drive so far as the requirements of the DVLA provided.It is not enough for an employer simply to believe that incapability exists. The familiar Burchell case requires that not only should there be a belief (there, it was dealing with misconduct, but the position is the same in relation to incapability) in the employer in the incapability, but that there should be reasonable grounds for that belief and, moreover, that those reasonable grounds should subsist after a reasonable enquiry.Here, it may be even doubted whether there was a true belief in Mr Haines' incapability. The events, as they fall out, seem to suggest that the employer did no more than simply to delegate consideration to Dr Brownfield and adopt his views without determining matters themselves so as to have arrived at a belief. However, let it be assumed in the Respondent's favour, that they did, indeed, have a belief in Mr Haines' incapability. It cannot be said that the doctor's view was unreasonable but, for all that, was there such investigation by the employer that could be described as reasonable and could lead to there being reasonable grounds for the belief that we have assumed that the County Council had? There was no attempt here to ensure that Dr Brownfield had in mind only the duties that could be required of Mr Haines under his contract, namely duties involving only the holding of an ordinary licence, not in fact even the transporting of people. Dr Brownfield plainly had in mind duties consisting of moving people, which, strictly, would be beyond the range of the contract, at any rate, if it was unreasonable of the employer to require people to be moved. There was no enquiry into the circumstances in which Mr Haines had his licence returned to him by the DVLA. In particular, a question which Mr Kinsky identifies as being reasonable to be enquired into was this. Mr Haines had had one stroke. Was the position that in consequence he was more than likely than other 58 year old drivers employed for general purpose employment, to have another stroke, or the same or less? He was, after all, for a time at any rate, on medication. Was the result that he was therefore less likely to have another stroke or more likely to have a stroke, now that he had had one stroke? And, was it more or less likely that harm to himself or others would ensue from the stroke? When the first stroke came on, it was his first one. He would not have known what was coming. He did not, in fact, lose consciousness during that first stroke. It might be that in any subsequent strokes, he would be able to feel and recognise them coming on (so to speak) and, if driving, would have been able to take satisfactory measures to avoid risk to himself and to others. There was no enquiry whatsoever by the employer into what the risk assessment was. They simply adopted Dr Brownfield's assessment and Dr Brownfield seems merely to have adopted the position that the Driving Policy requirement was properly to be required of Mr Haines.What the Industrial Tribunal said at the first hearing was:
"The Tribunal finds that in the light of the medical advice they received from the Consultant Occupational Physician, the Respondent had no option but to terminate the Applicant's employment as he could not be found alternative employment."
Leaving aside the fact that it is there said that "no alternative could be found", was it truly the case that there was no option? There was no option only if Dr Brownfield was right in adopting the Driving Policy view and it was, indeed, the Driving Policy view that Dr Brownfield adopted because at the end of paragraph 5, which we have cited, the Industrial Tribunal found it was this policy that Dr Brownfield was following in his recommendations.These are shortcomings which existed in the employer's investigation at the time. At the second hearing, the one that led to a review but merely confirmed the decision of the first, the Industrial Tribunal said in paragraph 5:
"The Tribunal does not accept the applicant's argument that because he had not been informed of the introduction of the revised driving policy of West Sussex County Council introduced in 1992, they were barred from enforcing that policy in 1995 when as a result of the applicant's stroke and his subsequent medical examination they were informed that he would be unable to carry out professional driving duties for the fire service for at least 5 years because he was not medically fit to the required standard required for group 2 drivers."
If, by that is meant that the Driving Policy had contractual force, that would suggest that an employer can unilaterally vary the requirements of his employee's contracts and do so without telling them and without even their knowing of the variation at the point of its introduction. That is a conclusion we could not endorse, nor can we understand the Industrial Tribunal to have had that in mind. Their conclusion, it would seem, must have been on the assessment of risk ground, but the assessment of risk ground, as we have mentioned, requires the employer to have had in mind the particular circumstances of the particular case and not just some broad application of a policy which was applicable, not as a matter of discretion, but on the face of it, as a matter of fixed application, without enquiry into the individual circumstances.Nowhere does the Industrial Tribunal or the employer seemed to have asked themselves, given that Mr Haines was required to drive only Group 1 vehicles and had a Group 1 licence, why is it that he should be required to be medically fit to the higher standard required for Group II drivers? We do not say that, invariably, if an employee can perform his contract in full then there can be no fair dismissal for incapability, but if an employee can perform his contract in full, there has to be a careful investigation by the employer, who wishes to show incapability, as to the particular reasons for the dismissal so as to establish that he is not, in effect, unilaterally requiring a standard of performance from his employee which he is not contractually entitled to.In our view, the decision of the Industrial Tribunal is based on error of law. The nature of Mr Haines' contractual duties, in the light of the fact that he was a Group 1 driver and satisfied the Group 1 medical requirements, and that it was only the Driving Policy that he fell short of, is an important consideration. Of course, an employer can set about requiring a higher standard than that which is required by the State or by legislation, but he cannot introduce it simply by a unilateral and, in this case, undisclosed promulgation of a policy document.There was no investigation here into Mr Haines' incapability that reflected that he had a Group 1 licence, that only driving within Group 1 could be required of him, that transporting people, strictly speaking, could not be required of him unless it was reasonable. Such an investigation, to have been reasonable, should have included an enquiry into a comparison between his risk of causing harm to others and to himself, having once had a stroke, with the position as it had been immediately before he had had the stroke.It is our view (and this is the error of law we would identify) that the employer here conducted an investigation which was perfunctory in the sense that it simply looked at what Dr Brownfield had said and that Dr Brownfield was simply applying the Policy without full enough regard to the fact that the Policy required a higher standard than the legislature required for Group 1 drivers and that although it included a recommendation, that recommendation was plainly not a strict requirement of the DVLA and that, in any event, at a contractual level, the Policy had not come to apply to Mr Haines.It seems to us, consistently with our view that the employer's investigation was inadequate, that the only conclusion that could have been reached by an Industrial Tribunal that had properly instructed itself would have been that Mr Haines' dismissal was unfair. So this is not a case for a full remission. We simply allow the appeal and declare Mr Haines' dismissal to have been unfair, leaving to the Industrial Tribunal such consideration of the appropriateness of various remedies and so on as shall seem to them fitting.We allow the appeal and remit in that way.