Appeal No. EAT/1093/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 31st March 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MRS M E SUNDERLAND JP

	MR S M SPRINGER MBE

MRS M HEFFERNAN	APPELLANT

LEEDS CITY COUNCIL AND OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

	NO APPEARANCE OR REPRESENTATION BY THE APPELLANT	

	

	MR JUSTICE MUMMERY (PRESIDENT):   This is the Preliminary Hearing of an Appeal by Mrs M Heffernan against the Decision of the Industrial Tribunal held at Leeds on 18th July 1994.

	The Tribunal heard a claim by Mrs Heffernan against the Leeds City Council for unfair dismissal from her position as a cleaner. That claim was made in a originating application presented on 3rd February 1994. She said she had been employed since 1978 as a cleaner at Mount St. Mary's High School, Leeds. She had been dismissed in circumstances which she contended were unreasonable. The reason given concerned her health. Her contention was that she was fit and able to do the job which she had been doing for fifteen years.

	The Council contested the claim, as did the school. Their case was that Mrs Heffernan was incapable of carrying out the duties, due to medical incapacity.

	In the Extended Reasons notified by the Industrial Tribunal to the parties on 30th September 1994, the Tribunal unaminously decided that Mrs Heffernan was not unfairly dismissed. Her application failed. She appealed to this Tribunal by Notice of Appeal served on 11th November 1994.

	The position today, is that, nobody has attended to represent Mrs Heffernan. She is not personally present. We have considered the Decision and the contentions set out in the Notice of Appeal and in the supporting documents. We have reached the conclusion, for reasons I will explain in a moment, that this Appeal does not raise any arguable point of law. It must be dismissed.

	The findings of the Tribunal are set out in the Extended Reasons. They deal with the medical evidence put before the Tribunal and which had been made available to the Council before the decision to dismiss was taken. The conclusion of the Tribunal, in paragraph 12, was that:

		"... that the reason for [Mrs Heffernan's] dismissal was that the [Council] genuinely and on reasonable grounds believed that [she] was medically unfit to perform her duties. That belief was based on a certificate from one of the doctors on the panel where the applicant was registered."[They then went on to consider]

		"13. ... whether the respondents acted reasonably or unreasonably in treating that belief as sufficient reason to justify the applicant's dismissal, ..."[and they were satisfied] "... that the respondents acted reasonably ..." [They went on to add this] We think it unfortunate that the medical certificate was provided against the background of a request which simply asked the general practitioner to indicate on a standard form whether the applicant should be retired on the grounds of ill health, in order that she might qualify for an ill health allowance. It would have been far better if the respondents had written a letter similar to the letter that they initially wrote to the GP asking specifically for advice on whether the applicant's medical condition was compatible with the routine duties required of her. Having said that, the tribunal swayed by the fact that the certificate is in clear, unequivocal, unambiguous terms and the applicant never sought to suggest until these proceedings that that medical opinion was incorrect."[The Tribunal concluded]

		"15... [that is was] an unfortunate case, because having regard to the applicant's perfectly satisfactory record of service over many years [they said, that it might be, that] ... had the doctor been asked to give second thoughts to it, he might have given a different opinion. The fact is he was never asked to reconsider the certificate he gave, the employers were entitled to act on it accordingly we find this dismissal was fair."

	In the Notice of Appeal, a number points are taken in relation to the Decision. It is submitted that the Tribunal were incorrect in their conclusion that the Respondents had acted reasonably and fairly by dismissing her on the grounds that she was medically unfit to carry out duties as a cleaner. They had sought to vary her cleaning duties to include having to climb ladders. She objected to that, due to medical conditions that made it inadvisable for her climb. Medical evidence was obtained from the GP, in the form of the attached "Medical Report". That confirmed that she should not climb ladders. The report did not suggest that she could not perform other cleaning duties. (There is a copy of the Medical Certificate attached to the Notice of Appeal).

	The Notice of Appeal goes on:

		"Further evidence in the form of a medical certificate from the [Mrs Heffernan's] GP ... was obtained by the Respondents. This stated that the Appellant was permanently incapable of working. [Mrs Heffernan] ... had not seen this document previously; nor had her GP informed her of its contents. The document was produced on the day of the hearing as a result of which [she] ... requested an adjournment. [For the purposes of obtaining] ... clarification from her GP because he had never stated to her that she was permanently incapable of working, [he had only stated] that she should not perform duties involving climbing."

The Tribunal refused to grant an adjournment, although they were "critical" of the medical certificate, as is set out in the part of paragraph 13 of the Decision. 

	On the basis of those matters, Mrs Heffernan contended that it was unreasonable for the Tribunal to refuse an adjournment, and the refusal had prejudiced the outcome of her case.

	She wanted this Tribunal to consider the new evidence in the form of a letter from her GP dated 8th November 1994. (We have a copy of that attached to the Notice of Appeal). That says, in relation to Mrs Heffernan,:

		"... I write to confirm that I was requested to complete a certificate on 18/10/93 concerning whether the above was permanently incapable of carrying out her duties as a domestic, I indicated that she was so incapable. This was because I was aware from the previous history of the matter that her duties covered climbing up and down ladders. She would not have been incapable of carrying out a cleaning job not involving climbing."

	We have considered these matters. The conclusion we have reached, is that there was no error of law in the Decision of the Tribunal on the evidence before them. There was no error of law in the Tribunal refusing to grant an adjournment. That was a matter within their discretion. We find it impossible to say that either the refusal of the adjournment or the final decision of the Tribunal, was one that no reasonable Tribunal could reach.

	We are, however, impressed by the merits of Mrs Heffernan's case, in the light of the explanations about the medical position now. Although we are not able to assist her on this Appeal, we express this hope that, if she applies for a review, to the Industrial Tribunal, sympathetic consideration will be given to extending the time for applying for a review. She could make a review application under Rule 11 The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Schedule 1, Rule 11(1) provides that:

		"... a tribunal shall have power, on the application of a party or of its own motion, to review any decision on ... [Then five grounds are set out. It is possible that two of those grounds could apply to this case].

		(d)	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
		(e)	the interests of justice require such a review."

	Mrs Heffernan is out of time for seeking a review. We have no power to make the decision whether a review is granted. We suggest that the Industrial Tribunal give sympathetic consideration to any application which Mrs Heffernan might make. 

	The only order we make on this Appeal is that the Appeal is dismissed, as it discloses no arguable point of law.