Appeal No.	 EAT/882/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MRS JUSTICE SMITH
MRS D M PALMER
MR G H WRIGHT MBE

MISS A CONNEY	APPELLANT

DERWENTSIDE DISTRICT COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS JANE GILBERT
(of Counsel)
Messrs Richmond Anderson Goudie
Solicitors
Flake Cottages
Cone Terrace
Chester Le Street
Co Durham DH3 3QH	

	MRS JUSTICE SMITH:     This is the preliminary hearing of an appeal by Miss Ann Conney against the decision of an Industrial Tribunal sitting at Newcastle upon Tyne on 17 March 1998, who dismissed her application for compensation for unfair dismissal.  The decision was promulgated on 28 April 1998.

	Miss Conney was employed by the Respondent, Derwentside District Council, for 23 years, from 1974 until she left in the course of 1997.  At the time of leaving she had risen to Grade 4 administrative assistant.  She had a good disciplinary record and until 1996 a good attendance record.  However, for some years before 1997 her performance had given rise to some criticism by her immediate managers.  She was described as being inflexible and she had had difficulty in keeping time schedules.  In her last appraisal she was graded at C and D, indicating that improvements were necessary because she had failed to meet deadlines.

	A few months before the termination of her employment she made a complaint against her line manager, Mr Grinter.  Her complaint was that Mr Grinter subjected her to unjustified persistent criticism and had undermined her confidence.  The grievance was dealt with in accordance with the Respondent’s procedure in April 1997, but was not upheld.  She attended the meeting even though she was, at that time, officially absent from work on account of stress-related illness.

	In May 1997 the Appellant indicated that she was ready to return to work.  There then followed a series of meetings with management at which the terms of her return to work were discussed.  In essence, there was to be a new job description.  Her job had changed to some extent in that some of the tasks that she had previously performed were now dealt with by computer.  She would be expected to undertake different tasks in their place.

	The detail of these changes does not matter, but it is to be recorded that no agreement had been reached at the third of these meetings which occurred on 11 July 1997.  The Appellant’s point of view at that meeting was that the job description proposed was too demanding and was beyond the capability of any single person.  Management did not agree.  However, during the meeting there was a short adjournment, after which the Appellant’s representative, on her instructions, requested that consideration be given to the option of ill-health retirement.  

	A report was obtained from Dr Maloney, an occupational health physician, dated 28 July 1997, which indicated that the Appellant was not fit to carry out the duties of her post.  On 18 August 1997, there was a further meeting between the Appellant and her union representative on one side and Mr Grinter and Mr Wheatley, a personnel officer for the Respondents.  The purpose of that meeting was to discuss the recent medical report.  The Appellant said that she could not return to work, as a consequence of her current state of health and the nature of the proposed job description.  Mr Grinter reassured her, saying that he thought she could manage the job.  He thought that in any event she would not be offered ill-health retirement on the grounds of stress.  He personally thought that her condition was of a temporary nature, rather than a manifestation of permanent ill-health.  The Appellant was offered re-deployment and training but she was not interested in these suggestions.  She indicated that she wished to take early retirement on the ground of ill-health.    Thereafter, Mr Grinter wrote to Dr Maloney indicating that that was the Appellant’s wish and shortly thereafter the Appellant was sent a letter confirming termination of her employment on the ground of ill-health.

	Despite that apparently consensual state of affairs, the Appellant made an application to the Industrial Tribunal alleging that she had been constructively dismissed from her employment.  She made a number of complaints about the way in which her return to work had been handled, stressing the fact that she considered that the proposed job description was unreasonable and beyond the capacity of any person to achieve.

	The Tribunal, having found the facts as we have indicated, set out their task which they said was to determine first, whether there had been a dismissal within Section 95 of the Employment Rights Act 1996.  They said:

“The Tribunal found that the applicant had requested that she be given ill-health retirement and that this request had been entirely unsolicited.  Her contract of employment had been terminated on agreed terms, following the Occupational Health Physician’s report and therefore there was no dismissal of the applicant by the respondent.”
If the Tribunal is wrong in that and there was technically a dismissal in accordance with the local Authority procedures by the applicant being given ill-health retirement, the Tribunal find that the employer dismissed the applicant by reason of capability within section 98 (2) (a) of the Employment Rights Act 1996.”

	They then went on to consider, at paragraph 16 of the reasons, the case of East Lindsey District Council v Daubney [1977] ICR 566, and considered the procedure which an employer must follow before he can fairly dismiss an employee on the grounds of incapacity due to ill-health.  The Tribunal found that the Respondents had behaved in a reasonable manner and dismissed the application.

	In this appeal it was argued first that there was an error of law in that the Tribunal had held that this was not a dismissal.  Our attention was drawn to the fact that the employers had conceded in their IT3 that they had dismissed the Appellant.  

	Miss Gilbert, in argument, conceded when asked that it was very difficult for a Tribunal and indeed for an employer, to put the right legal label upon the situation which pertained here.  The Tribunal found that the Appellant asked for ill-health retirement and Miss Gilbert accepts that she cannot challenge that finding of fact.  The employer sought to comply with the request for ill-health retirement.  The parties were therefore in agreement that the contract of employment should end.  However, because the Appellant was to be given an ill-health pension, the employers had to call the termination a dismissal.  We can well understand the difficulty that the Tribunal found themselves in.  They thought that the decision was consensual, as indeed it plainly was on their findings of fact, and we can understand why they were minded to say that it was not a dismissal.  If it was a dismissal, it was plainly fair, as it seems to us, because not only were the appropriate procedures gone through, the result was that which the Appellant herself had asked for.  

	Miss Gilbert also drew our attention to paragraph 2 of the Notice of Appeal, which complains that the Tribunal had failed to make findings in respect of the various complaints which were raised at the hearing about the job description.  However, those complaints which were pursued at the hearing, cannot now be pursued because the Tribunal found that the Appellant changed her mind about wanting to come back to work and indicated, quite voluntarily, that she wished to retire.  In those circumstances, we cannot see that the failure of the Tribunal to state its conclusions about the job description could in any way be described as an error of law.  The dispute about the job description was overtaken by the request for early retirement and it was no longer an issue with which the Tribunal had to deal.

	Having listened to Miss Gilbert, we are satisfied that the Appellant is unable to raise any arguable point of law in this appeal and this appeal must therefore, be dismissed at this preliminary stage.