K F BARTLETT LTD v MR C TOMS [2004] UKEAT 0131_04_1308

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0131_04_1308Case No Appeal No. UKEAT/0131/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
K F BARTLETT LTDAPPELLANTMR C TOMSRESPONDENT
Before
His Honour Judge J R ReidDate 13 August 2004
[1]APPEARANCES For the Appellant MR DAVID MEREDITH (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB For the Respondent MR ANGUS HALDEN (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Bridge House 48-52 Baldwin Street Bristol BS1 1QD SUMMARY Unfair Dismissal / Disability Discrimination Applicant dismissed on medical grounds. He was disabled within the Disability Discrimination Act 1995 . Adjustments were made which were satisfactory but on medical advice the adjustments were withdrawn and he was dismissed. The question was whether this less favourable treatment was justified under section 5 (3). Was the employer justified in relying on the medical evidence it received? HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at Exeter on 7 November 2003 by which the Tribunal by a majority held that Mr Toms had suffered less favourable treatment contrary to section 5 (1) of the Disability Discrimination Act 1995 and that he had been unfairly dismissed. The minority view was that the Appellant (Bartlett) had made out a justification defence under section 5 (3) of the Act and that the dismissal was fair in all the circumstances.[2]The issues on the appeal are whether the Tribunal was correct in its application of the guidelines set out in Jones v Post Office [2001] IRLR 384 , whether the Tribunal had been correct in their assessment of the reasonableness of the dismissal and whether the Tribunal erred in law in the manner in which it treated documentary evidence put before it.[3]The factual background is as follows. Mr Toms worked for Bartlett, a family company with about 100 employees, as a refrigeration engineer from 1970 until his dismissal in March 2003. He has suffered from disc degeneration in his spine at L5/S1, and as a result chronic back pain, since 1996. In 1996 he fell from some shelving whilst at work and twisted his back. On his return to work Bartlett accommodated his back injury by allowing him to avoid jobs which required heavy lifting. In September 2000 he suffered a further injury when he was pulled over by a colleague who slipped on an icy floor. Mr Toms hurt his neck which he registered as an industrial injury in case he suffered any further problems. He did not claim any benefits at the time. As a result of the registration in March 2001 Mrs Bartlett, the company secretary, received a form B 176 from the DHSS.[4]This set in train the events which led to Mr Toms' dismissal. Mrs Bartlett had no experience in dealing with such forms and thought that she needed to take some steps in relation to Mr Bartlett's long-standing back problem. She wrote to Mr Toms:
"We have become concerned over your physical wellbeing after recently receiving a DHSS Disability Allowance Claim Form for yourself which would indicate that you might not be able to carry out your present job without high risk of further injury to yourself."
Bartlett also took advice from Peninsula, their employment consultants, and as a result prepared a hazard action plan relating to Mr Toms' work, decided to take expert medical advice and contacted their local Social Services Disability Employment Advisor for a review of Mr Toms' job and for expert advice and assistance.[5]In April 2001 Mr Toms attended a meeting with Mr Frost, the local Disability Employment Advisor, and Mr Baitup, Bartlett' service manager. He joined the meeting after its commencement. After the meeting he spoke by telephone to Mr Frost. The parties are agreed that the Employment Tribunal were in error in finding that the telephone conversation was after Mr Frost produced his report. The call, it was common ground, preceded the report. Mr Frost's report recommended that Mr Toms be redeployed to a more sedentary, less physically demanding position. The report was criticised by the Tribunal as containing inaccuracies which they concluded must have come from information given by Mr Baitup before Mr Toms joined their meeting.[6]Mr Toms was not given a more sedentary post: he had tried the post of sales manager briefly in 1996 but had asked to go back to his previous role after a very short time. Nothing further seems to have happened until the summer of 2002 when Mr Toms suffered from severe pain in his knees (not connected with his back condition). As a result of this he ceased to do "on call" duties because his medication might impair his driving. This prompted Bartlett to decide that his increasing incapacity (i.e. his inability to cover call outs) required a review of his health condition. They asked the local Heath Authority to recommend a suitable doctor. The Health Authority recommended Dr Rogers. He saw Mr Toms on 11 November and produced a detailed report. He noted at the outset that he had not had the benefit of seeing Mr Toms' general practitioner records. Mr Toms told him, among other things, that he could not work on top of refrigerators up ladders because he had experienced a loss of sensation in his left leg and feared he might fall and that he could not participate in "on call" partly because of his medication and partly because he could not lift unaided. He diagnosed Mr Toms as having chronic spinal degeneration with active pain. He described it as "potentially unstable". He pointed out that even fairly minor lifts and twists could cause a disc to prolapse. He concluded that it was in the interest of both sides for Mr Toms to take early retirement on the grounds of ill health.[7]Mr Toms did not like the report and showed it to his own GP who wrote a letter addressed "To whom it may concern" suggesting that "in order to obtain a full assessment and clearer idea of [Mr Toms'] ability to continue in his current job that you contact the spinal team before making any further decision." On 16 December following a medical capability meeting Mr Toms was placed on medical suspension and Bartlett agreed to obtain further medical advice. They wrote to Mr Toms' GP asking for his opinion as to Mr Toms' capability to continue carrying out his role. The GP replied that he thought that to answer the question satisfactorily "the expertise of a medical practitioner who is also occupational health trained". Bartlett's response was to re-instruct Dr Rogers who saw Mr and Mrs Toms together. The meeting was not a success owing to the hostility of Mr Toms and no further examination was conducted. He then wrote a further report on that meeting and the further information he was given in which he stated it was not really possible to carry out any proper assessment but confirmed he maintained his earlier view. Following receipt of this report and another medical capability meeting Bartlett dismissed Mr Toms on grounds of "ill health capability" by letter dated 14 March 2003.[8]It was common ground that Mr Toms was a disabled person for the purposes of the Act. The Employment Tribunal held that Bartlett had made reasonable adjustments to accommodate his disability and that these were working satisfactorily. It therefore held that there was no discrimination contrary to section 5 (2) of the Act. It then held (as was also common ground) that the withdrawal of adjustments and the decision to dismiss were "less favourable treatment" and so discriminatory. The battleground was whether the less favourable treatment was justified under section 5 (3) of the Act.[9]The Tribunal concluded it was not. In doing so it relied upon the statement of the law by Pill LJ in Jones v Post Office [2001] IRLR 384 , para 27:
"The Tribunal cannot, however, in my judgment, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required, but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational. This constraint limits the power of tribunals to provide relief to disabled employees, but in my view it follows from the wording of the section, which requires consideration of the reason given by the employer, and recognises the importance of the employer's responsibility for working practices."
The decision of the majority was that the facts of the case were distinguishable from the Jones case because "the medical opinion of Dr Rogers was flawed to such an extent that it was simply irrational for the Respondents to place any reliance on it". The flaws in the medical opinion and the reliance on it were said to be (1) that Dr Rogers relied in part on Mr Frost's inaccurate report, (2) that Bartlett knew Dr Rogers had "no occupational health or orthopaedic qualification or expertise", (3) that Bartlett had chosen to go back to Dr Rogers when advised by Mr Toms' GP to take up to date advice from a spinal specialist and "having had the weaknesses in Dr Rogers' first report pointed out to them in clear terms" by Mr Toms' GP, (4) that Bartlett chose to rely on Dr Rogers' second report when they knew he had not re-examined Mr Toms, (5) that the only spinal specialist's report was almost four years old and it appeared to the majority "wholly irrational" for Dr Rogers to place any reliance on it and (6) that Dr Rogers was thought by the majority to have "expressed some degree of doubt" in relation Mr Toms' GP, which they regarded as "wholly inappropriate." The majority's view was that the medical investigation was not properly conducted, was not based on the properly formed opinion of a doctor who was properly qualified, and it therefore produced an answer which was irrational and upon which Bartlett could not rely in arguing justification. The Tribunal was also critical of the fact that it did not have before it the letters of instruction to Dr Rogers.[10]To dispose of the last point: we were told by Mr Meredith on behalf of the Bartlett (and counsel for Mr Toms, who also appeared below, did not contradict this) that he asked the Tribunal to look at the letters of instruction and the Chairman refused them. On this basis Hooper J at the preliminary hearing of this appeal ordered the service of those letters of instruction and they were placed before us. There is nothing out of the ordinary in either letter and neither party sought to make any point on the terms in which Dr Rogers was instructed.[11]The first of the majority's points depended on their finding that Mr Frost had been fed inaccurate information by Mr Baitup before Mr Toms joined their meeting. Mr Baitup was unable to attend to give evidence and the Tribunal was apparently unwilling to allow Bartlett to rely on his witness statement with the result that Mr Meredith, the consultant representing Bartlett, withdrew his attempt to have it admitted in evidence. This was unfortunate from the point of view of Bartlett but cannot give rise to any ground of appeal. The Tribunal had found that Mr Toms had telephoned Mr Frost after receipt of the report to tell him of the inaccuracies. This finding of fact was accepted by both parties to be incorrect in that the evidence was that Mr Toms had telephoned Mr Frost before the report was sent. However it does not invalidate the conclusion that inaccuracies must have stemmed from what Mr Baitup said before Mr Toms joined the meeting.[12]The first of the inaccuracies in the report was said to be the assertion that Mr Toms regularly had to request help from customers and other staff. It was said that there was no evidence to support this statement (no doubt because of Mr Baitup's absence) and the Tribunal found it was untrue "on the basis of evidence from 25 customers". That evidence was in the form of 25 common form letters each bearing Mr Toms' address at the top and signed by persons said to be customers. The documents were produced for the first time in the course of the hearing. The tribunal nonetheless admitted them and relied on them. Had Mr Meredith persisted in his attempt to have Mr Baitup's statement admitted and the Tribunal ruled it out, then this discrepancy in treatment of the evidence might have given rise to grounds of appeal, but as things stand, it does not. As to the weight to be attributed to the statements, that was a matter for the Tribunal. Given that we are told that Mrs Bartlett in evidence said she recognised the names of many of the persons signing statements as customers, we do not think it can be said that the Tribunal exercised their discretion wrongly in accepting the statements in evidence and in choosing to place weight on them.[13]The second inaccuracy in the report was said to be the statement that "the number of jobs that can be allocated to Colin because of his illhealth are become less". This is a misquotation from the report. The expression used was "are becoming less". The Tribunal accepted Mr Toms' evidence that there was never any reduction in the jobs that he was provided to do. The Tribunal therefore held that the report was inaccurate in this respect. This finding was based on a misunderstanding of what Mr Frost had written. The Tribunal did not criticise the assertion in the report that there was a growth in the air conditioning aspect of the business or that the physical nature of such work was more demanding. Mr Toms was being provided with as many jobs because adjustments made were to give him jobs he could do, but the number of those jobs which could be allocated to him had become less. There were many jobs he could not do. He was confined to light duties (as shown for example by the report of 12 August 2002 of Mr Hourigan, the superintendent physiotherapist at the orthopaedic centre) and could do no jobs involving heavy lifting. The Tribunal's finding on this point was simply wrong: Mr Frost's report was accurate in this respect and the evidence on which the Tribunal relied in making their finding did not address the point.[14]The third and final inaccuracy was the statement that the "nature of Colin's back problems is not compatible with the nature of his current duties." The supposed inaccuracy of the statement depends on reading it out of its context as suggesting that Mr Toms' back problems were not consistent with the light work he was doing. Its context is:
"Because of the growth in the air conditioning aspect of the business, which combined with the physically more demanding nature of such work, the number of jobs that can be allocated to Colin, because of his health problems, are becoming less. This presents an increase in workload for other engineers and a cost-effectiveness issue for the business. Regrettably, the nature of Colin's back problem is not compatible with the nature of his current duties."
In its context the sentence takes on a very different flavour. In our judgment the statement was not inaccurate in pointing out that his back problem was inconsistent with the duties he should have been able to perform, and was not suggesting that he was incapable of performing the light duties to which he was being restricted.[15]It was submitted that in considering the Tribunal's findings as to inaccuracies in Mr Frost's report we should be careful not to fall into the trap of allowing questions of fact to be dressed up as questions of law (against which Mummery LJ warned in Yeboah v Crofton [2002] IRLR 634 at para 94). In our view this is one of those cases to which Mummery LJ referred at para 95 where a Tribunal has misunderstood evidence leading to its making crucial findings of fact "unsupported by evidence or contrary to uncontradicted evidence".[16]So far as the second of the Tribunal's reasons is concerned, Dr Rogers was the doctor recommended to Bartlett for the specific purpose of the examination of Mr Toms by the local Health Authority. He is a local general practitioner who has provided occupational health advice to a large number of companies for over 20 years. It is true that he is not a qualified consultant in occupational medicine and had only undertaken the Introductory Course in the subject, but in the light of his long experience and the recommendation of the local Health Authority, in the absence of any evidence to the contrary, it cannot sensibly be said that he did not have the necessary expertise or that Bartlett could not rely on that expertise.[17]As to the Tribunal's third point, in his first letter Mr Toms' GP suggested that there were "a number of points in Dr Rogers' report which warrant clarification" and suggested an opinion from Mr Chan, the spinal surgeon who had seen Mr Toms in 1999, or Mr Hourigan, the superintendent physiotherapist. In his second letter the GP described Dr Rogers as "a local general practitioner" and dealt with the amount of analgesic Mr Toms was taking. Mr Toms evidently told his GP he was taking fewer than he told Dr Rogers he was taking, but this was in any event something of a red herring since the real issue was not whether there would be periods when Mr Toms would be unable to drive because of analgesics he had taken but the state of his back and the potential consequences of his continuing in his employment. Mr Toms' GP declined to answer the question whether Mr Toms could continue in his current role without putting himself or other persons at risk and said he believed that to answer the question satisfactorily "requires the expertise of a medical practitioner who is also occupational health trained." Beyond the inference that Mr Toms' GP did not think that Dr Rogers was suitably qualified to give the report he gave, it is difficult to see what "weaknesses" in Dr Rogers' first report were pointed out "in clear terms" or at all.[18]The Tribunal's fourth criticism was that Bartlett chose to rely on Dr Rogers' second report when they knew he had not re-examined Mr Toms. It is true that Dr Rogers did not re-examine Mr Toms and the reasons were clearly set out in his second report. However the report was made with the benefit of the letter from Mr Toms' GP and Mr Chan's report of 23 June 1999. Dr Rogers had taken on board the GP's remarks about qualifications and set out his experience in his letter. He also noted Mr Chan's letter, which essentially confirmed Dr Rogers' earlier diagnosis, namely a chronic spinal degenerative condition. The only new information contained in the report was the recording of Mr Toms' explanation that he felt he could do his job despite back pain and he managed in every respect apart from excess lifting and that the only thing he could not do was air conditioning where he had to bend and stretch. We are unable to see why Bartlett should not have relied on this report so far as it went.[19]The fifth criticism was that the only spinal specialist's report was almost four years old and it appeared to the majority "wholly irrational" for Dr Rogers to place any reliance on it. In this the majority chose to make a medical judgment of their own. There was no evidence that a medical practitioner should not take such a report of such an age into account. Mr Chan reported disc degeneration and that Mr Toms could be considered to have chronic mechanical back pain. This merely confirmed Dr Rogers own diagnosis from his own examination. The report provided useful confirmation for Dr Rogers own view. It is incidentally noteworthy that Mr Hourigan's report of 12 August 2002 (which does not seem to have been shown to Dr Rogers) describes Mr Toms' back pain as "well documented" and that it had "not really changed much of late". His description of it is as follows: "continuing lower back pain in a band across his back below the level of his iliac crest, an intermittent feeling of heaviness in the legs, and bilateral calf discomfort, some tingling affecting the tips of all his toes".[20]The final point taken by the majority was that Dr Rogers "expressed some degree of doubt" in relation Mr Toms' GP, which they regarded as "wholly inappropriate." What Dr Rogers did was point out that the GP would not provide a response as to Mr Toms' working ability and indicate that he regarded this as understandable. It may be that he was tactless in suggesting that the GP held a view which he was not prepared to divulge but it is not a good reason for the majority to reject Dr Rogers' conclusions and to hold that the medical investigation was not properly conducted.[21]The majority of the Tribunal in our view fell into error and failed properly to apply the statement of the law by Pill LJ in Jones . It formed a view as to the suitability of Dr Rogers' qualifications, contrary to the recommendation of the local Health authority, based merely on the description of Dr Rogers as "a local GP" by Mr Toms' GP. It appears totally to have ignored his many years experience in the field. Merely because some other medical practitioner expresses a preference for examination by some practitioner with some higher or different qualification does not mean that the instructed practitioner was not suitably qualified, nor (contrary to the views of the majority) does it make it unreasonable or irrational for the employers to stick with their original choice of practitioner and refer back to him informing him of that other practitioner's view. This is not a case such as British Gas plc v Breeze (unreported, 13 September 1988) at 6E-7C where there was a conflict of view between two doctors and it was held that it was unreasonable for the employer to reject the suggestion that a third consultant be asked to advise.[22]The majority then fell further into error in their criticism of the medical investigation. The only criticism of the initial investigation was that it was to some extent founded on material provided by Mr Frost which was said to be inaccurate. There was (accepting the Tribunal's findings of primary fact) only one inaccuracy in that report, namely that Mr Toms "regularly has to request help from customers or other staff". This was immaterial to Dr Rogers' report which recorded (correctly) what Mr Toms told him about his problems with lifting. The majority criticised Dr Rogers' second report in that it was made without a further examination of Mr Toms and that it referred to Mr Chan's letter. The second report recorded the meeting with Mr Toms, and had regard to the points raised by the GP's letter, referred to Mr Chan's letter and confirmed the earlier diagnosis. Dr Rogers reiterated concern as to the absence of GP records. It specifically stated that on that occasion "it was not really possible to carry out any proper assessment" but concluded with Dr Rogers confirming that he remained of his earlier view. There was no evidence before the Tribunal that the process through which Dr Rogers went, taking his two reports together, was inadequate by the standards of any ordinarily competent doctor, still less that his conclusions were incorrect. This was not even a case such as postulated by Pill LJ where the Tribunal were being asked to prefer one opinion over another.[23]The majority held that it was "irrational" for Bartlett to have placed "the reliance they did" on Dr Rogers' second report, and that "this medical investigation was not properly conducted, was not based on the properly formed opinion of a doctor who was suitably qualified and therefore produced an answer which was irrational". This finding starts from the error that Dr Rogers was not properly qualified and then fails to take account of the fact that the dismissal was not based on Dr Rogers' second report, but on the totality of the material which Bartlett had. Indeed the note of the medical capability meeting shows that the second report was not referred in the medical capability meeting that led to Mr Toms' dismissal and there is no finding in the Tribunal's findings of fact of any reliance on the second report. There is no suggestion as to how the meeting prior to the second report was not properly conducted. Nor is there any explanation as to how the "answer" was "irrational". There was a careful and detailed first report which contained a diagnosis of a medical condition which it appears that Mr Toms accepted he suffered from. He had an active and continuing back condition which was potentially unstable, with a potential risk of prolapse. The conclusion was that he was not suitable for his employment. This could not be categorised as an "irrational" conclusion nor could it be said to be based on an inadequate or improper investigation. The Tribunal was forming its own view as to the risk assessment which the employer conducted and seeking to escape from the limits on the powers of the Tribunal by characterising a properly informed conclusion as "irrational".[24]In our view the minority of the Tribunal reached a conclusion which was correct in law and was the only conclusion properly available to the Tribunal on the material before it. On the advice given by Dr Rogers Bartlett were entitled to take the view that they had substantial reason material to the circumstances of the case for dismissing Mr Toms and their less favourable treatment of Mr Toms by dismissing him was justified. We considered whether we should refer the case back to the Tribunal to re-consider the question of "reasonable adjustment" under section 5 (2). However no potential reasonable adjustment (such as finding Mr Toms some sedentary job) other than the "light duties" adjustment which was withdrawn was suggested before the Employment Tribunal. We therefore took the view that no purpose would be served by remitting the case to the Tribunal. It follows that the appeal must be allowed and Mr Toms' application dismissed.