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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> O'Donoghue v. Elmbridge Housing Trust [2003] UKEAT 0937_02_2909 (29 September 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0937_02_2909.html Cite as: [2003] UKEAT 0937_02_2909, [2003] UKEAT 937_2_2909

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APPEARANCES

 

For the Appellant	MR PATRICK GREEN (Of Counsel) Instructed by: Messrs Rollingsons Solicitors Lonsdale Chambers 27 Chancery Lane London WC2A 1NG
For the Respondent	MR RICHARD PURCHASE Representative Insight Human Resource & Management Consultancy Leonardslee House Brighton Road Lower Beeding West Sussex RH13 6PP


 


JUDGE WAKEFIELD

1. This is an appeal by Miss Kathleen O'Donoghue against a decision of an Employment Tribunal sitting at London South on 15 May 2002. By the decision, for which extended reasons were sent to the parties on 15 July 2002, the Employment Tribunal found that the dismissal of the Appellant by the Elmbridge Housing Trust on 28 June 2001 was for capability and was fair.
2. The relevant background facts are briefly the following. The Appellant had been employed by the Respondent since 1989 as a live-in housing warden. At the end of 2000, having reached the age of 60, she had wished to retire but no alternative housing acceptable to her was available. From 14 March 2001 she was away from work by reason of ill-health. In the ensuing two months the Respondent sought to obtain her consent for a medical examination with a view to assisting her to return to work. Not being satisfied with her responses to requests for such consent, the Respondent dismissed the Appellant with effect from 28 June.
3. By her Originating Application presented on 27 September 2001, the Appellant claimed that the dismissal was unfair. The Respondent asserted that the dismissal was for capability and was fair and the Employment Tribunal so found. In reaching these conclusions the Tribunal first set out the names of the witnesses from whom there was oral evidence, those being the Appellant and Mr Baxendale on behalf of the Respondent. They stated the written evidence that they had received and recited that there had been a bundle of documents before them. They then said at their paragraph 2:

"The issue before the Tribunal was whether the Applicant had been fairly or unfairly dismissed from her employment on 28 June 2001. It was common grounds between the party that the reason for dismissal was capability."

4. The facts that they found were then set out in paragraph 3 and consisted almost wholly of a chronological recital of the content of written communications between the parties from the date when the Appellant first was absent from work on grounds of stress which was 14 March to the dismissal letter of 28 June.
5. Having then set out the relevant law and the submissions of the respective parties, the Employment Tribunal concluded in its paragraphs 6-8 as follows:

"6. The Tribunal finds that the reason for dismissal was capability. The Tribunal also find that the Applicant did not cooperate for whatever reason, with the Respondent and in relation to their request for a medical report and consultation which was a reasonable request. This process started on 3 May 2001 when Mr Baxendale wrote to the Applicant asking the Applicant for her consent to arrange a medical report. Despite this letter, and the attempts of Alan Morgan the Branch Secretary of the Elmbridge branch of UNISON the Applicant did not complete the medical form. Accordingly a further letter was written on 11 May 2001 in which the Respondents made it clear that they would like to consider ways that they could assist the Applicant in returning to work and whether there may need to be some adjustments to her working conditions as a result of illness. Still the Applicant did not respond.

7. The Tribunal noted that the Respondent did allow the Applicant to have her Trade Union Representative with her although this was not a formal disciplinary matter. The Tribunal also find that the Respondents by their letter of 4 June 2001 and their letter of 13 June 2001 made it clear to the Applicant that they required a completed medical consent form otherwise they would have to make a decision on her continued employment on the basis of the evidence which they have before them.

8. The Tribunal concludes that the Respondent did all that they could to elicit the information from the Applicant but the Applicant's total lack of communication and her continued refusal to provide medical information left them with no alternative but to make a decision based on the facts which they had before them. The Tribunal find that given the particular circumstances of this case namely the lack of consent for any medical records the period of three and a half months from the date the Applicant went off on sick leave to the date of her dismissal was reasonable. The Tribunal further find that the decision to dismiss was within the range of reasonable responses which a reasonable employer could make. Accordingly the dismissal was fair and the Applicant's claim is dismissed."

6. By the amended Notice of Appeal this decision is criticised as being wrong in law and perverse. It is said that the Employment Tribunal failed to distinguish between conduct and capability issues and failed to have proper regard to the fact that the Respondent had not followed its own proper procedures including as to an internal appeal against the dismissal. The Respondents argue that there was sufficient evidence before the Employment Tribunal for the conclusions set out in the extended reasons to have been properly reached although it is conceded that to say that there was in the relevant period a "total lack of communication" by the Appellant was incorrect, at least in terms of communications in writing.
7. We are satisfied that this Tribunal decision cannot stand. There is a clear contradiction between the finding in paragraph 6 of the extended reasons that the dismissal was for capability and the conclusions in paragraph 8 which clearly relate to a dismissal for misconduct, that being the alleged failure of the Appellant to cooperate with the Respondent in facilitating a medical assessment. The conclusion of the Employment Tribunal that the Appellant did maintain a continued refusal to provide medical information is in our view not warranted on the only proper interpretation of the correspondence between the parties between May and the dismissal.
8. Before the dismissal there was no engagement in any of the disciplinary or the capability procedures of the Respondent. Subsequently to the dismissal there was no provision of an appeal. Any waiver of the appeal procedure months later by the Appellant's representative cannot in our view affect the Appellant's entitlement to such a procedure at the proper time. The appeal must therefore be allowed and the decision of the Tribunal quashed.
9. In most instances after such findings of perversity this Employment Appeal Tribunal would remit the case for a rehearing before a differently constituted Employment Tribunal. This is the course urged upon us by the representative of the Respondent in the event of this appeal succeeding. We have however been persuaded by Counsel for the Appellant that this is an exceptional case where it is appropriate for us to substitute our own findings. We are satisfied that all facts relevant to the dismissal can be found in the exchange of letters between the parties in the period already referred to between May and June.
10. We are satisfied that the only proper interpretation of that correspondence is that the Appellant, after an initial reservation in order to ensure that her medical condition should only be made known to an appropriate person within the Respondent, gave the required consent to be medically examined and for her medical records to be disclosed. We are satisfied that the reason for dismissal can only be categorised as conduct, that being the Respondent's view that she had not so cooperated as regards the medical investigations. This being so what followed did not comply with any fair procedures. There had been no disciplinary hearing, no appeal hearing and the dismissal could not satisfy the test as to fairness under Section 98 of the Employment Rights Act. The employer did not act reasonably in treating it as a sufficient reason for dismissing her. Dismissal could not in all the circumstances be within the bands of reasonable response. We therefore find that the dismissal was unfair and we remit the case to an Employment Tribunal for a remedies hearing, that Tribunal to be differently constituted from the one which heard this case. At any such hearing it will of course be open to the Respondent to raise any issues regarding contributory conduct.