Appeal No. EAT/475/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 June 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MS S R CORBY

	MR L D COWAN

ESSEX COUNTY COUNCIL	APPELLANTS

MISS D NEVITT	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Hill Dickinson David Campbell
Solicitors
Pearl Assurance House
Derby Square
Liverpool
L2 9XL

For the Respondent	Mr O M Aves
	The Chief Executive and 	
	Clerk
	Essex County Council
	County Hall
	Chelmsford
		CM1 1LX

	MR JUSTICE MUMMERY (PRESIDENT):   This is an appeal from the decision of an Industrial Tribunal held at London North on 23 February 1994.  

	For full reasons notified to the parties on 15 April 1994, the Tribunal unanimously decided that the dismissal of Miss D. Nevitt by her employers, the Essex County Council ("the Council") was unfair.  The question of remedy was adjourned to a date to be fixed, if the parties were unable to reach an agreement.  

	The Council appealed against the decision by Notice of Appeal served on 17 May 1994.  The appeal first came before the Employment Appeal Tribunal on 5 September 1994 when, at a preliminary hearing, it was ordered that the appeal should be allowed to proceed to a full hearing and that the Chairman's notes of evidence should be produced.

	The factual background to the claim was that on 21 January 1993 Miss Nevitt presented an Originating Application to the Industrial Tribunal claiming unfair constructive dismissal from her employment as a Day Centre Officer (Level 2) in which she had been employed from 20 May 1985 until 21 November 1992.  Her case was that, in the opinion of the Council's Medical Officer, she was unfit to continue in the post she held.  He recommended that the Council find her another post, but no attempt was made to do that under the accepted procedure.  

	The Council's case was that from 18 May 1992 Miss Nevitt was continuously absent from work due to sickness.  In July 1992 the Council's Medical Adviser advised the Council that Miss Nevitt was incapable of discharging efficiently the duties of her employment by reason of permanent ill-health.  On 21 August 1992 the Council wrote to Miss Nevitt terminating her employment with effect from 21 November 1992, should alternative employment with the Council not be secured by then.  She was dismissed on the grounds that she was no longer capable of performing the full duties of her employment by reason of permanent ill-health.  As for permanent employment Miss Nevitt asked to be considered for work of a kind to which the Council was unlikely to offer her in view of the medical advice received.  Alternative employment was therefore not secured and notice of termination took effect.  The Council contended that they had acted reasonably in relying on the advice of the Medical Officer and generally.  Unfair dismissal was denied.  

	The Industrial Tribunal found the following facts:

		(1) Miss Nevitt's employment, which started on 20 May 1985, at the Pynest Training centre, Harlow, involved her coping with handicapped persons and people with learning difficulties.

		(2)  From 18 May 1992 she was off sick and did not return to work.  Her problem was certified as anxiety and depression.  She had fallen down the stairs at her home in September 1991 and suffered a head injury.  From 9 January 1992 the Council's Medical Adviser had stated that she had suffered no untoward injuries as a result of the fall and was "fit to continue with her job as a Day Centre Officer".

		(3)  After an interview at her home on 2 June 1992 with representatives of the Council (Miss Ellis and Miss Bentley).  Miss Nevitt was asked to complete a form giving the County Medical Officer permission to obtain a report from her GP.  Miss Nevitt did that on 3 June.  She stated that she wished to have access to her GP's report before it was sent to the Council's Medical Adviser.  That was not done.  The Council's Medical Adviser saw her GP's report and certified that she was unfit to continue in her post, but Miss nevitt was never given a copy of that report nor told the grounds why he came to that view.  

		(4)  On 19 August 1992 Miss Ellis wrote to Miss Nevitt asking if she wished the Council to look for alternative employment.  Miss Nevitt said that she did.  On 21 August 1992 the Group Director for West Essex wrote to Miss Nevitt stating that the search for alternative employment would continue to 21 November.  If alternative employment was not found by that date her employment would terminate.  It was stated in the letter that:

			"should alternative employment not be secured within this time scale, this letter serves as notice to bring your employment to an end on 21 November 1992.  You will receive seven weeks' paid notice up to and including this date."  

	The letter made no mention of Miss Nevitt's right to appeal against that decision.  

		(6)  There had been a discussion on 13 July 1992 between the Council's Medical Adviser and Miss Nevitt at which the Medical Adviser discussed with Miss Nevitt the contents of her GP's report, her state of health and his intention to certify that she was not fit to continue working.

		(7)  The Tribunal held that, in those circumstances, because of the medical opinion received by the Council, Miss Nevitt was dismissed for ill-health and that fell within the capability grounds in Section 57 of the Employment Protection (Consolidation) Act 1978.  

		(8)  The dismissal was unfair because proper procedures had not been followed.  There was no proper consultation with Miss Nevitt.  She was not allowed to see her GP's report, which she was entitled to see.  She was not informed that she had a right of appeal.  No efforts were made to investigate complaints which she had made about the behaviour of her line manager, Mr Radford.