THE INDUSTRIAL TRIBUNALS

CASE REF: 777/06

CLAIMANT:	Norman James Chestnutt

RESPONDENT:	Royal Mail Group PLC

DECISION

The unanimous decision of the tribunal is that the claimant’s complaint is dismissed.  The tribunal is satisfied on the balance of probabilities that the dismissal of the claimant was not contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman:		Ms M Sheehan

Members:		Mr McDonald
			Mr Lysk

Appearances:

The claimant:	The claimant appeared on his own behalf.

The respondent:	Mr J Dunlop, Barrister-at-Law, appeared on behalf of the respondent, instructed by Napier & Sons, Solicitors. 

(1)	The claimant lodged a complaint on 20 June 2006 that he had been unfairly dismissed from his employment on 1 April 2006 as a “Delivery Postman”.  The respondent contended that the dismissal was on the ground of incapacity, that it had been fair and was in accordance with the Ill Health/Retirement Agreement, which contractually applied to the claimant’s employment. 

Sources of Evidence

(2)	The tribunal received two bundles of documents, which were identified as “R3” and “C1”.  The Ill Health/Retirement Agreement was identified as “R2”.  The tribunal heard evidence from Dr Alastair Glasgow, Mr Tom O’Kane and the claimant. 

Issues

(3)	It was not in dispute between the parties that the claimant had been unable to undertake his duties as a delivery postman from 31 August 2005.  His employment was terminated with notice by letter dated 29 March 2006.  The issue for the tribunal to determine was whether the respondent’s decision to terminate the claimant’s employment at that time was “fair” within the provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996, in effect, whether it was a decision that fell within the “band of reasonable responses” having applied that test to the circumstances of this case and the procedure used by the respondent in reaching the decision to dismiss.

The Facts

(4)	The claimant was employed as a Delivery Postman from 18 October 2004.  Throughout his employment with the respondent the claimant had a number of absences from work due to injury.  In February 2005 he sustained a fracture injury to his toe and was absent from work for five weeks.  The claimant subsequently developed a condition in his right foot, linked to his gait as a result of the earlier fracture, and reported unfit on 31 August 2005. 

(5)	The claimant had a number of referrals to the respondent’s independent Occupational Health Advisory Service, known as Atos Origin.  His immediate line manager erroneously believed that the absence in August 2005 related to the same condition as that in February 2005.  A referral was made to Atos Origin on 9 September 2005.  The claimant was assessed by an occupational therapist as unfit for his normal work but fit for “light” duties as part of a rehabilitation programme.  The prognosis given to the respondent was “with correct management a full recovery was expected in the long term”. 

(6)	The claimant was provided with light duties – indoor duties and reduced hours.  The claimant’s recovery was not as anticipated.

(7)	In November 2005 the respondent circulated by e-mail a request to all areas of its business an enquiry regarding redeployment of the claimant to alternative duties should he not “complete his current period of rehabilitation”.  Only one possible position arose but the claimant indicated when consulted about the position that it did not suit his personal circumstances. 

(8)	In December 2005 Dr Glasgow, on behalf of Atos Origin, examined the claimant.  He considered the claimant “would be fit for return to normal duty” by mid January 2006.  The claimant was requested by letter dated 6 January 2006 to report for duty as reserve cover of outdoor town delivery duties from w/c 9 January 2006.  As a result of the claimant’s response to that request he was referred again to Atos Origin.  Dr Glasgow re-examined the claimant on 11 January 2006.  The claimant was assessed as still unfit for normal duty. 

(9)	Dr Glasgow reported to the respondent he could give no indication as to the timescale for a recovery that would permit a return by the claimant to normal duty.  He expressed the opinion that further rehabilitation was not likely to assist but the claimant would be fit for redeployment to work where carrying of a mail satchel was not required.  Dr Glasgow advised, as an alternative, that the claimant met the criteria for medical retirement with lump sum payment under the respondent’s Ill Health/Retirement Agreement as the claimant was incapable for the foreseeable future of carrying out his current contractual duties. 

(10)	The respondent on receipt of this information advised the claimant it was giving serious consideration to ill health retirement and invited the claimant, in accordance with its procedures, to a meeting with a Mr Hutton, the claimant’s immediate line manager, so the claimant could make representations on this proposed course of action.  The meeting took place on 20 March 2006 with Tom O’Kane, the respondent having taken on board the claimant’s objections to Mr Hutton conducting this meeting.   

(11)	As of 20 March 2006 the claimant was awaiting a review appointment with a podiatrist due in early April 2006.  The claimant made representations to Tom O’Kane that he considered that he could be fit to return to duty by end of April 2006.  Tom O’Kane gave the claimant the opportunity to submit medical evidence in support of this contention.  The claimant requested his general practitioner to provide a report addressing this issue, having furnished him with a copy of the contractual documentation which advised that “the report must contain sufficient clinical detail about diagnosis, medical management and prognosis to allow a conclusion to be made about your future fitness for employment” within the foreseeable future.  Foreseeable future was stated to mean “the next nine months”.  The claimant collected a report from his general practitioner in a sealed envelope and forwarded it on to the respondent, without making himself aware of its contents.

(12)	The report obtained from the claimant’s general practitioner was very brief and did not comply with the requirements stated in the contractual documentation.  In particular it concluded that the claimant having “initiated treatment with podiatry feels that the treatment is improving his situation.  He is due to see podiatry on 4 April.  He feels pending their final report that he will be able to return to work from then”.  The general practitioner failed to express his professional opinion on the issue. 

(13)	The respondent concluded on the basis of the medical reports before it including those from Atos Origin and the claimant’s general practitioner that there was little prospect of the claimant making an early return to fitness for duty as a delivery postman.  The claimant’s employment was terminated with a lump sum payment under the Ill Health/Retirement Agreement.  The claimant received a payment in lieu of notice. 

(14)	The claimant availed of his right of appeal.  By letter of 3 April 2006 the respondent notified him that he “must provide further medical evidence in support of your appeal…no later than 21 June 2006”.  This letter also advised the claimant that the medical evidence should satisfy the requirements detailed in paragraph 11 above.  The claimant requested a further report from his general practitioner and a report was provided dated 25 May 2006.  Once again the claimant did not familiarise himself with the details of the report before submitting it to the respondent.  The report summarised the history of attendances with the general practitioner’s surgery and finished with reference to the claimant’s podiatry examination in early April 2006.  It concluded with the observations “that he was wearing his orthoses without problem.  He reported greatly reduced pain levels.  He was able to walk 1-2 miles. He is due to be reviewed in 3 months time”.  Again the report expressed no professional medical opinion as to the claimant’s prognosis or a projected or potential date for his return to fitness for his employment.

(15)	The respondent, in accordance with the Ill Health/Retirement Agreement requested an independent medical review of the claimant’s fitness for duty as a delivery postman as part of the appeal for re-instatement procedure.  The additional general practitioner report dated 25 May 2006 was forwarded to Atos Origin.  The review carried out by Dr Ian Lindsay, Occupational Physician, in late June 2006 concluded that the GP report dated 25 May 2006 “does not indicate when he (the claimant) might be fit for all the duties of his role as a delivery postman”.  Dr Lindsay advised that the evidence did not alter the earlier advice of Dr Glasgow.  Dr Lindsay concluded that the claimant “still met the criteria” for Ill Health Retirement, “though given that he is improving quite quickly now, you may be prepared to take the risk of keeping in your employment”.  The respondent concluded that in light of the claimant’s poor response to rehabilitation and the still indeterminate prognosis the claimant’s employment should be terminated.  The respondent’s business required a fit “Delivery Postman” able to fulfil the obligations of that role. 

(16)	The claimant was notified that his appeal was unsuccessful by letter dated 27 June 2006.  The claimant did not avail of his further right of appeal to an independent medical board.   

Applicable Law

(17)	Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 is the relevant legal provision in determining whether the respondent acted reasonably in treating the claimant’s ill health as sufficient reason for dismissal.  The function of this Industrial Tribunal was to determine whether, in the particular circumstances of this case, the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer might have adopted.  The requirement of reasonableness in Article 130 (4) of the 1996 Order relates not only to the outcome in terms of the decision of the employer but also to the process by which the employer arrived at that decision.  An essential principle of natural justice is the right to an unbiased or impartial tribunal.  In Iceland Frozen Foods v Jones [1983] ICR 17 the function of the tribunal is set out as "The function of the Industrial Tribunal and industrial juries to determine whether, in particular circumstances of each, the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer might have adopted".  The provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 required the tribunal to also have regard to the equity and merits of the case. 

Conclusions in light of the facts and law

(18)	The respondent who employs a substantial number of persons in Northern Ireland followed an agreed procedure, which was incorporated into the terms of the claimant’s employment.  When the claimant objected to a particular member of management acting in the process, the respondent acted upon his disquiet and put in place alternative arrangements.  There appeared to be no breach of the agreed Ill Health/Retirement Agreement procedures.  The claimant had a fair and impartial hearing from Tom O’Kane.  Employees of Atos Origins, an independent organisation specialising in occupational health assessments, carried out all the medical assessments.  The tribunal noted that despite many of these absences occurring in the claimant’s first year of employment with the respondent, no enquiry was made with regard to re-deployment until after the claimant had completed a full year of service. 

(19)	It appeared to the tribunal more than unfortunate that the claimant did not familiarise himself with the contents of the medicals submitted on his behalf.  He would then have been aware of their deficiencies against the stated requirements in the guidelines provided to him by the respondent.  However this deficiency cannot be laid at the respondent’s door.  The tribunal noted that the claimant did write to Tom O’Kane by letter dated 11 April 2006 requesting “exact information in writing of everything you request from my doctor and podiatrist”.  The response he received from Mr O’Kane provided no elaboration on that issue but indicated that his involvement in the matter had concluded.  While that response was not helpful both the claimant and Mr O’Kane could have forwarded the enquiry to the relevant person dealing with the appeal.  At the same time the letters and documents sent to the claimant were in sufficiently clear language.  The claimant had provided these documents to his general practitioner.  In all the circumstances the tribunal did not consider that any omission by the respondent in providing the clarification requested from them by the claimant undermined the fairness of the overall procedure followed by the respondent. 

(20)	The respondent’s actions can only be viewed in the context of the information that the respondent had or could have had available at the relevant time.  Dr Lindsay stated in the final review that the claimant “is improving quite quickly now, you may be prepared to take the risk of keeping in your employment”.  At the same time the conclusion of Dr Lindsay was that the claimant “still met the criteria” for Ill Health retirement.  Accordingly the respondent was faced with an employee who some three months after the initial decision in late March 2006, to terminate due to incapacity, was still not fit to return to duty in the immediate foreseeable future.  The respondent received independent advice upon which the respondent concluded that they were not prepared to accept the risk of retaining the claimant and his recovery continuing to be delayed.  There was no evidence, which could satisfy this tribunal on the balance of probabilities that the decision of the respondent fell outside the range of decisions that a reasonable employer could reach.  Accordingly the claimant’s complaint is dismissed.

Chairman:

Date and place of hearing:	1 May 2007, Belfast.

Date decision recorded in register and issued to parties: