Appeal No.	 EAT/1300/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR S M SPRINGER MBE

MS L PORTMAN	APPELLANT

BROMLEY HOSPITALS NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J SUDDABY
(of Counsel)
Streeter Marshall
74 High Street
Croydon
CR9 2UU	
For the Respondents	MR QUINTIN BARRY
(Solicitor)
Donne Mileham & Haddock
42-46 Frederick Place
Brighton
BN1 1AT	

	JUDGE PETER CLARK:     This is an appeal by the Applicant before the Ashford Industrial Tribunal sitting on 26 July 1996, against that Tribunal’s reserved decision that her complaint of unfair dismissal against her former employer, Bromley Hospitals NHS Trust (the Respondent) failed.  That decision, with Extended Reasons, was promulgated on 27 September 1996.

The Facts

	The Tribunal made the following findings of fact.  The Appellant commenced employment with the Respondent, or its predecessor, on 9 May 1983.  At all times material to this appeal she worked as the Ward Manager of Schooling Ward, Grade G at Bromley Hospital.

	In May 1992 she was diagnosed as suffering from Hodgkin’s disease.  She underwent intensive treatment and was off work sick until January 1993.  Following her return to work she suffered a relapse and was again off sick from May until October 1993.

	In the summer of 1994 the Appellant felt tired and stressed and took a further month off work.

	By November 1994 Miss Farr, the Appellant’s Nurse Manager, became concerned that the Appellant’s performance in managing her ward was not up to the required standards in a number of respects.  Accordingly, during an individual Performance Review, Miss Farr set a number of performance targets which she required the Appellant to achieve.

	During informal meetings Miss Farr asked the Appellant whether her health was affecting her ability to work.  The Appellant replied that it was not.

	At an informal meeting held on 9 May 1995 the Appellant informed Miss Farr that she had just been diagnosed as suffering from myxoedema but she continued to deny that her health was affecting her performance, and never complained that the targets set for her were not achievable.

	The Respondents had two separate procedures for dealing with staff incapability.  The first was entitled “Policy Procedures relating to Incapability’; the second was headed “Management Guidelines on Handling Sickness and Incapability due to Ill-health or Disability”.  We shall call the first “the incapability procedure”, and the second “the sickness procedure”.

	Following the meeting of 9 May 1995 Miss Farr decided to invoke the incapability procedure in the Appellant’s case.  Paragraph 1 of that procedure requires the responsible manager to ascertain whether there is an underlying problem, such as a domestic, medical or personal problem, and to consider whether, inter alia, reference to the Occupational Health Department is necessary.  Miss Farr did not take that course since she was repeatedly assured by the Appellant that her health was not affecting her performance.

	At a meeting held on 23 May 1995, attended by the Appellant and her union representative, Miss Farr set out a list of 13 objectives to be achieved by the Appellant over the next four months, and informed her that failure to achieve those objectives may lead to consideration as to her ability to continue in her post as Ward Manager.

	On 7 August a further meeting was held.  Miss Farr expressed concern that certain objectives had still not been met, and a further meeting was scheduled for 3 October.

	Following that meeting Miss Farr concluded that the Appellant could not and would not achieve the required standard.  Accordingly, she decided that the Appellant should be dismissed from her current post and be offered an alternative position as a nurse at the lower E grade, with no protection as to her Grade G salary.  The meeting was adjourned so that the Appellant could consider that offer.

	On 10 October the Appellant’s union representative visited Miss Far and asked her whether she would support an application by the Appellant to retire on grounds of ill-health.  Such an application required the support of a medical practitioner who would give an opinion that the Applicant was permanently incapable of discharging her duties.

	Miss Farr indicated her agreement to this course and wrote to Dr Taylor in the Respondent’s Occupational Health Department on 16 October.  At this time the Appellant was again off sick due to “debility”.

	Dr Taylor replied promptly on 17 October stating that the Appellant was suffering from severe depressive illness and that he would be pleased to support her ill-health retirement application.  In due course he did so in writing by completing the relevant part of the Appellant’s application, giving his opinion that the Appellant was permanently incapable of discharging her responsibilities as a Ward Manager or any nursing activities.

	On 30 October a further meeting took place, conducted by Miss Farr’s senior, Ms Lay.  Since the Appellant did not wish to accept the alternative Grade E nursing post, at that meeting Ms Lay gave the Appellant oral notice of termination of employment.

	That was confirmed in a letter dated 17 November 1995.  She was given 12 weeks’ notice from 30 October to take effect on 21 January 1996.  In fact, the effective date of termination was extended to 9 February 1996, to take into account the full 12 week notice period starting with the date of that letter.

	The Appellant appealed against her dismissal, and on 13 February 1996 an appeal panel dismissed her appeal, upholding the decision to dismiss on grounds of incapability, believing that ill-health was a contributory factor.  On the same day the NHS Pensions Agency wrote to the Appellant rejecting her application for ill-health retirement on the grounds that their doctor did not accept that the Appellant was permanently incapable of carrying on with her job.

	On 24 April 1996 the Appellant presented her complaint of unfair dismissal.  By its Notice of Appearance the Respondent resisted the claim, contending that the reason for the Appellant’s dismissal related to her capability and that the decision to dismiss for that reason was reasonable and that the dismissal was not unfair.

The Industrial Tribunal Decision

	The Tribunal approached the matter in this way; by reference to paragraphs in their reasons:

(1)  Although expressing some concern (paragraph 22), it accepted that Miss Farr acted reasonably in employing the incapability procedure.  The Appellant made it clear throughout that she did not regard her health as affecting her capability to perform her job.  (paragraph 24)

(2)  Had the Tribunal decided that the sickness procedure ought to have been used, it would have found the dismissal to be unfair.  (paragraph 26)

(3)  Miss Farr’s support for the Appellant’s ill-health retirement application could not be criticised as an unwarranted change of attitude.  It was an endeavour to assist the Appellant to access her pension and it occurred after the decision to dismiss was taken on 3 October 1995.  (paragraph 25)

(4)  The Tribunal appear to have accepted, as did the internal appeal panel, that the Appellant’s health did play a part in her failings as a Ward Manager, but that Miss Farr acted reasonably in applying the incapability procedure, and the manner in which she applied it  (paragraph 28).  Miss Farr’s belief that the Appellant could not continue as Ward Manager was reasonably held.  (paragraph 19)

(5)  Both sides bore some responsibility for not putting the Appellant’s ill-health retirement application before the appeal panel, but it was not unreasonable for them not to do so because Dr Taylor’s letter of 17 October 1995 had been written after the decision had been taken to terminate the Appellant’s employment on 3 October 1995.  (paragraph 27)

(6)  In all the circumstances, the Respondent acted reasonably in treating the reason for dismissal, which the Tribunal found to be capability, as a sufficient reason for dismissal.

	Accordingly, the complaint failed.

The Appeal

	On behalf of the Appellant, Mr Suddaby’s primary submission is that the Tribunal misdirected itself in law by failing to consider material events after 3 October 1995, when Miss Farr took the decision to dismiss the Appellant for failure in performance, in assessing the reasonableness of the Respondent’s decision to dismiss for the reason relied upon, namely incapability.  Specifically, he contends that the Tribunal ought to have considered whether the appeal panel reached a reasonable decision to dismiss the Appellant’s appeal without considering the content of Dr Taylor’s letter of 17 October 1995, and the ill-health retirement application.

	Further, he argues that the Tribunal misdirected itself in holding both parties equally responsible for failing to put Dr Taylor’s letter, and the completed ill-health retirement application, before the appeal panel.  The primary responsibility for doing so rested with the Respondent, which had the documents in its possession.  See Mitchell v Arkwood Plastics (Engineering) Ltd [1993] ICR 471.

	He contends that in misdirecting itself the Tribunal fell into error so that its decision cannot stand.  Either we should substitute a finding of unfair dismissal, or remit the case to a fresh Industrial Tribunal for rehearing.

	For the Respondent, Mr Barry submits that there was here no misdirection.  The Tribunal looked first at the position at the time of Miss Farr’s decision to dismiss, and then looked at the appeal panel’s decision in the light of all the material then available.  That was a permissible, indeed correct approach in law.

	Alternatively, he submits that even if there was a misdirection, the result was “plainly and unarguably right”.  Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812.

Conclusion

	We accept Mr Suddaby’s submission that the reasonableness of an employer’s decision to dismiss must be judged at the completion of the dismissal process, that is, in this case, at the conclusion of the appeal stage, based on the reason given for dismissal at that time.  West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192.  Stacey v Babcock Power Ltd [1986] ICR 221.

	We do not, however, accept that the Tribunal misdirected itself as to that principle.  It was entitled to view the matter, first, at the stage at which Miss Farr decided to dismiss the Appellant, that is, on 3 October 1995.  At that stage Miss Farr had, reasonably in the view of the Tribunal, completed the incapability procedure and concluded that the Appellant did not meet the required standards of competence.  Further, the Appellant had consistently denied up to that point that her health had affected her performance.  Thus the initial decision was reached solely on the grounds of incompetence, not sickness.

	Thereafter the position changed at the behest of the Appellant, or at any rate her Trade Union representative.  On 10 October Miss Farr was asked to support the Appellant’s application for ill-health retirement.  That reflected a total change of position by the Appellant; she now said that far from her health not affecting her performance, she was permanently incapable of continuing in employment on health grounds.

	Miss Farr, in an endeavour to assist the Appellant, agreed to support this proposal, and in turn obtained Dr Taylor’s medical support.

	Thus, when the matter came before the appeal panel although Miss Farr stated that her decision to dismiss related to performance, not sickness, the panel were made aware of the ill-health retirement application supported by Dr Taylor.

	They were not shown Dr Taylor’s letter by either party, but it is doubtful whether it would have added to or altered that panel’s final conclusion that the decision to dismiss on grounds of incapability be upheld, but with the rider that, on the then state of affairs, ill-health contributed to the Appellant’s incapability to perform in her post.

	The Tribunal considered that final position and concluded, as it was entitled to do in our judgment, that the decision to dismiss was reasonable under Section 98 (4) of the Employment Rights Act 1996.

	There are cases in which new information comes to light between notice of dismissal and termination of the employment, or completion of the appeal process, if later, which may cause a reasonable employer to withdraw the dismissal or allow the appeal, and failure to do so may render unfair a dismissal which was fair at the time that the decision to dismiss was taken.  Williamson v Alcan (UK) Ltd [1978] ICR 104, 109 B - C.  However, that is not this case.  The subsequent information did nothing to undermine the original decision to dismiss, based on the Appellant’s performance.

	Some argument has been advanced to the effect that upon receipt of Dr Taylor’s report a reasonable employer would have terminated the incapability procedure and embarked on the sickness procedure.  In our view that takes the matter no further.  The two procedures overlap to some extent, but fundamentally differ in that the incapability procedure is essentially concerned with an employee’s incompetence in the job; the sickness procedure is concerned with absence from work due to ill-health.  Ill-health may affect performance adversely, but unless the medical evidence shows that an improvement in health may lead to an improvement in performance we cannot see how it will be material when considering the reasonableness of the employer’s use of the former procedure.  For the Respondent here to be told by Dr Taylor that the Appellant was permanently incapable of work on health grounds seems to us to be, if anything, a separate potential basis for dismissal, were it necessary.  It cannot undermine the original basis for dismissal, lack of performance, although it may, as the appeal panel found, go some way to explaining that lack of performance.

	In these circumstances we conclude that no error of law has been demonstrated in this appeal and accordingly it must be dismissed.

	However, in deference to the further argument addressed to us by both advocates, we should make it clear that had we found a misdirection in all or any of the ways in which Mr Suddaby puts this appeal, we would have concluded that the Tribunal’s decision was plainly and unarguably right on the facts as found, and thus would have dismissed the appeal in any event.