ANDREW SAYERS v LOGANAIR LTD [2005] UKEAT 0084_04_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0084_04_1705Case No Appeal No. UKEAT/0084/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
ANDREW SAYERSAPPELLANTLOGANAIR LTDRESPONDENT
Before
Lady Smith Miss J A Gaskell Mrs A HibberdDate 17 May 2005
[1]APPEARANCES For the Appellant Ms C McManus, Solicitor Of- Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE For the Respondent Mr P Brown, Solicitor Of- Messrs Biggart Baillie Solicitors Dalmore House 310 St Vincent Street GLASGOW G2 5QR SUMMARY UNFAIR DISMISSAL Reason for dismissal Reasonableness of dismissal The claimant was a pilot whose licence became restricted and he was dismissed. He claimed that he had been unfairly dismissed in respect that his dismissal was due to his having made a protected disclosure. The respondents denied that that was the reason for the dismissal, their case being that the dismissal was due to the restriction that had been imposed on his licence and that it was, in the circumstances, fair. The Employment Tribunal found that the reason for dismissal was the restriction on his licence, not the protected disclosure, but that the dismissal was unfair. THE HONOURABLE LADY SMITH: Introduction: This case is about unfair dismissal. The judgment represents the views of all three members who pre read the relevant papers.[2]We will refer to the parties as claimant and respondents.[3]This is an appeal by the claimant against a decision of the Employment Tribunal sitting at Aberdeen, Chairman Miss FCC Carmichael, registered with extended reasons on 1 June 2004. There is also a cross appeal at the instance of the respondents.[4]The claimant was represented there and before us by Ms C McManus, solicitor. The respondent was represented there and before us by Mr P Brown, solicitor. The claimant claimed that he had been unfairly dismissed in respect that his dismissal was by reason of health and safety concerns about which he made a protected disclosure, attracting the protection of s.43B(1)(d) and (f) of the Employment Rights Act 1996 ('the 1996 Act'). The respondents' contention was that they had dismissed the claimant by reason of capability, an admissible reason under section 98(2) of the Employment Rights Act 1996. The Issues:[5]The essential issues, as defined by the Employment Tribunal were to determine what was the reason for the claimant's dismissal and whether the respondents had acted reasonably in dismissing the claimant for that reason.[6]The Employment Tribunal found that the claimant had made protected disclosures regarding the use by the respondents of disinfectant called FAM30 at Tingwall Airport during the foot and mouth outbreak. They were not, however, satisfied that the making of those disclosures caused his dismissal. They determined that the reason for his dismissal was that of capability, the result of a medical examination in August 2001 having been that his pilot's licence was qualified so as to restrict him to multi-crew flights which meant that he could not perform the duties he was required under his contract to perform which were single crew duties.[7]However, the Employment Tribunal were not satisfied that the respondents had acted reasonably in dismissing the claimant by reason of his capability since they had not taken the steps that would, they said, have been taken by a reasonable employer to have him medically examined further prior to dismissing him.[8]The claimant appeals against that decision, contending that the Employment Tribunal should have found that the reason for his dismissal was not capability but was that he had made a protected disclosure. The respondents cross appeal, contending that the Employment Tribunal should have found that they acted reasonably in dismissing the claimant. Relevant Law:[9]The relevant legislative provisions, which were taken into account by the Employment Tribunal, are: Section 98(1) and (2) of the 1996 Act :
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held . (2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do …"
Section 103A of the 1996 Act:
"An employee who is dismissed shall be regarded for the purposes of Part X as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure." and section 43 of the 1996 Act which defines a protected disclosure as a qualifying disclosure which is, in turn, defined in Sections 43B(1) as including any disclosure which in the reasonable belief of the employee making it tends to show: "(d) that the health or safety of any individual has been or likely to be endangered, or (f) that the information tending to show any matter falling within any one of the preceding paragraphs has been or likely to be deliberately concealed."
The Facts :[10]The respondents are a regional airline based in Glasgow and flying on routes that are operated on the basis of a franchise from British Airways. They also provide an air ambulance service. They fly mainly small aircraft on island routes. The claimant was employed by them as an airline pilot based at Tingwall Airport in Shetland. He flew a BN2 aircraft on the basis that he was the sole aircrew.[11]On 30 March 2001, during the foot and mouth outbreak, the claimant was splashed with the disinfectant FAM30, which was being used to soak foot mats, when he was walking out to his aircraft. He became unwell that day and he completed an air safety report regarding the incident with the disinfectant. He was signed off work. Put shortly, thereafter he repeatedly expressed the view that FAM30 was toxic, was responsible for his illness (which involved shortness of breath), and had been used by the respondents in contravention of health and safety requirements. He conveyed these views not only to the respondents but also to the Civil Aviation Authority ('CAA'), the Health and Safety Executive and Shetland Islands Council. The respondents did not accept that exposure to FAM30 was responsible for the claimant's ill health or that they had used the disinfectant inappropriately.[12]The claimant remained signed off work on sickness absence following the incident on 30 March 2001 on account of shortness of breath. He was medically examined on 22 August 2001 and, as a result, a limitation was placed on his pilot's licence that it was "valid only as or with qualified co-pilot" . By mid September 2001, the CAA had noted the restriction and the claimant had been advised of it. He was also told, in terms of a letter from the CAA aeromedical officer, that it was envisaged that the limitation would remain in place for approximately 3-6 months. The restriction was in fact extended following a further medical examination, in a further medical certificate dated 7 January 2002.[13]The claimant was called to a meeting with the respondents on 25 October 2001 at which he was told that the respondents felt that they had no alternative but to terminate his contract. Correspondence ensued and on 3 December 2001, Captain Akhurst wrote to the claimant advising him that since the restriction on his licence had not been lifted, the respondents were terminating his contract on 12 weeks notice. Captain Akhurst added:
"We will be prepared to revoke this decision should you regain an unrestricted licence before the termination of your period of notice. Your employment will therefore end on Tuesday 26 th February 2002. We have as I explained considered the possibility of alternative employment within the company, however, and for the foreseeable future, there are no vacancies on multi-crew aircraft or any opportunities to transfer existing staff to the single crew operation at Lerwick. There are no other suitable positions available for you and we therefore have no alternative but to bring your employment to an end."
[14]As indicated, the claimant, rather than regaining an unrestricted licence before the termination of the period of notice, was subjected to an extension of the restriction on his licence in terms of a medical certificate dated 7 January 2002. At the time of the hearing before the Employment Tribunal, the restriction was still in place.[15]The Employment Tribunal found that the claimant had made protected disclosures in good faith but they found that the fact that the claimant ceased to hold the necessary licence to do the job for which he had been employed was the principal reason for his dismissal. They then went on and considered whether the respondents had acted reasonably in dismissing the claimant and found that they had not done so because, in their view, the respondents were obliged to obtain an up to date assessment of the claimant's state of health before deciding to dismiss him and they had failed to do so. Claimant's Appeal:[16]The claimant's appeal was based, in submission, on two grounds. Firstly, that the Employment Tribunal had erred in their characterisation of the principal reason for dismissal. The Employment Tribunal had found that dismissal was on capability grounds but, so it was submitted, they had not made any finding that the claimant was required to work on single crew duties. That submission was made under reference to the case of Wilson v The Post Office [2000] IRLR 834 . At times, however, the submission drifted into an attempt to argue that the Employment Tribunal should have found that the respondents' motivation related to the claimant having made a protected disclosure, a ground of appeal which had been earlier rejected under Rule 3(7). Secondly, it was submitted that the Employment Tribunal failed to apply the correct test with regard to the burden of proof in establishing what was the principal reason for dismissal, a submission which was made under reference to the case of Maund v Penwith District Council [1984] IRLR 24 . The Employment Tribunal ought, it was said, to have considered all the facts and after making findings as to the existence of the issue raised by the claimant that the making by him of a protected disclosure was the principal reason for the dismissal, ought to have considered the facts and, on a balance of probabilities what, on the evidence, was the reason for the dismissal. Respondents' Answer and Cross Appeal:[17]In answer, it was submitted on behalf of the respondents that the claimant seemed to be seeking to argue the disallowed ground of appeal relating to motivation. Insofar as it was argued that the Employment Tribunal had erred in their characterisation of the reason, the ground was not well founded. The claimant could not work as a single crew pilot because of the restriction on his licence and that lack of capability fell fairly and squarely within the provisions of s.98(2)(a).[18]Regarding the argument relating to onus, it was submitted that it was quite clear from the decision and reasons of the Employment Tribunal that they had, after a lengthy hearing with many documents to consider, analysed the facts, rejected the contention that the reason that the claimant was dismissed was because he had made a protected disclosure and found themselves satisfied that the reason for the dismissal was capability.[19]In support of the cross appeal, it was submitted on behalf of the respondents that the Employment Tribunal had erred in law in respect that they had not applied the objective test of the reasonable employer. Rather, they had substituted their own view of what was reasonable action to take. Reference was made to the well known dicta contained in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 . The Employment Tribunal had, it was submitted, gone much further than was required. Having established that the reason for dismissal was capability, not ill health, it was illogical that they had then proceeded to find that the respondents should have made further enquiries regarding the claimant's health. It was not incumbent on them to do so. There was no indication, in any event, that a further medical report would have made any difference since the claimant's licence remained restricted even at the time of the hearing before the Employment Tribunal.[20]Further, it was submitted that the Employment Tribunal placed undue weight on the evidence of Professor Seaton and made assumptions about Dr Downie's work which they were not entitled to make, no evidence having been given regarding it. Dr Downie did not give evidence. They placed an undue burden, in their approach, on the respondents, contrary to the principle that the question of whether or not a dismissal was fair is a neutral one: Boys and Girls Welfare Society v McDonald [1996] IRLR 129 . Claimant's Answer to Cross Appeal:[21]It was pointed out by Ms McManus for the claimant that the Employment Tribunal had taken up quite a few pages in considering the question of reasonableness of the respondents' response, in the course of which they discuss the evidence regarding the possibilities of alternative employment for the claimant. However, ultimately, her position was that what the Employment Tribunal had decided was that the respondents did not act reasonably not because they did not offer the claimant alternative employment but because they did not obtain an up to date medical report.[22]It was submitted that the Employment Tribunal had not substituted their own view but had been careful to consider the reasonableness of what was done. Reference was made to their assessment of Professor Seaton's evidence and rejection, at p.20, of Captain Akhurst's claim that "there was little purpose in conducting a further assessment" . The Legal Principles:[23]The relevant principles which fall to be applied in this case would appear to be firstly that where an employee alleges that he has been unfairly dismissed, there is an onus on the employer to establish the reason or, if more than one reason, the principal reason for the dismissal. If the employee seeks to counter the employers' case as to the reason for the dismissal, then he must raise the issue in evidence ( Maund v Penwith District Council) but once he has done so, the onus remains on the employer to prove the reason for the dismissal. If that onus is discharged and it is shown that the reason for dismissal fell within one of the categories referred to in s.98(1) and (2) of the Employment Rights Act 1996, it is then for the Employment Tribunal to assess whether the dismissal was fair or unfair, bearing in mind the provisions of section 98(4) of the 1996 Act. That is a question that the Employment Tribunal requires to decide not on the basis that there is any onus on the employers to satisfy them that they acted reasonably but on the basis that that question is a 'neutral' one ( Boys and Girls Welfare Society v McDonald) .[24]Secondly, if it is shown that the reason, or the principal reason, for dismissal is that the employee made a protected disclosure then the dismissal will automatically be regarded as unfair.[25]Thirdly, in determining whether or not an employer has acted reasonably in treating an employee's incapacity as grounds for dismissal, the Employment Tribunal are bound to apply not their own opinion as to what would have amounted to reasonable and adequate investigations and enquiries but the objective standard of the reasonable employer as to what was reasonable in the circumstances ( Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 ) . If the employers' response was within the range of responses that were reasonable in the circumstances, then the dismissal is fair. To put it another way, the dismissal will be regarded as unfair if the employers' response was one which no reasonable employer would, in all the circumstances, have had.[26]Fourthly, an appeal lies against the decision of the Employment Tribunal only on a question of law ( Employment Tribunals Act 1996 s.21). Conclusions:[27]Claimant's Appeal: Respondents' Cross Appeal:
"…we considered that a reasonable employer would have obtained an up to date assessment of the applicant's state of health, particularly in the light of ongoing improvement in his health and his fitness for some work, before deciding whether to dismiss, because in the circumstances his health was the factor which caused the restriction in his licence, which in turn resulted in the lack of capability to perform his duties."