Appeal No. UKEAT/0084/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 17 May 2005

Before
THE HONOURABLE LADY SMITH
MISS J A GASKELL
MRS A HIBBERD

ANDREW SAYERS	APPELLANT

LOGANAIR LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

 
For the Appellant	Ms C McManus, Solicitor
Of-
Messrs Harper Macleod
Solicitors
The Ca’d’oro
45 Gordon Street
GLASGOW   G1 3PE

For the Respondent

 	

Mr P Brown, Solicitor
Of-
Messrs Biggart Baillie
Solicitors
Dalmore House
310 St Vincent Street
GLASGOW   G2 5QR

SUMMARY

UNFAIR DISMISSAL

Reason for dismissal

Reasonableness of dismissal

The claimant was a pilot whose licence became restricted and he was dismissed.  He claimed that he had been unfairly dismissed in respect that his dismissal was due to his having made a protected disclosure.  The respondents denied that that was the reason for the dismissal, their case being that the dismissal was due to the restriction that had been imposed on his licence and that it was, in the circumstances, fair.  The Employment Tribunal found that the reason for dismissal was the restriction on his licence, not the protected disclosure, but that the dismissal was unfair.

THE HONOURABLE LADY SMITH:

Introduction:
1.	This case is about unfair dismissal.  The judgment represents the views of all three members who pre read the relevant papers.

2.	We will refer to the parties as claimant and respondents.

3.	This is an appeal by the claimant against a decision of the Employment Tribunal sitting at Aberdeen, Chairman Miss FCC Carmichael, registered with extended reasons on 1 June 2004.  There is also a cross appeal at the instance of the respondents.

4.	The claimant was represented there and before us by Ms C McManus, solicitor.  The respondent was represented there and before us by Mr P Brown, solicitor.  The claimant claimed that he had been unfairly dismissed in respect that his dismissal was by reason of health and safety concerns about which he made a protected disclosure, attracting the protection of s.43B(1)(d) and (f) of the Employment Rights Act 1996 (‘the 1996 Act’). The respondents’ contention was that they had dismissed the claimant by reason of capability, an admissible reason under section 98(2) of the Employment Rights Act 1996. 

The Issues:
5.	The essential issues, as defined by the Employment Tribunal were to determine what was the reason for the claimant’s dismissal and whether the respondents had acted reasonably in dismissing the claimant for that reason. 

6.	The Employment Tribunal found that the claimant had made protected disclosures regarding the use by the respondents of disinfectant called FAM30 at Tingwall Airport during the foot and mouth outbreak. They were not, however, satisfied that the making of those disclosures caused his dismissal.  They determined that the reason for his dismissal was that of capability, the result of a medical examination in August 2001 having been that his pilot’s licence was qualified so as to restrict him to multi-crew flights which meant that he could not perform the duties he was required under his contract to perform which were single crew duties.

7.	However, the Employment Tribunal were not satisfied that the respondents had acted reasonably in dismissing the claimant by reason of his capability since they had not taken the steps that would, they said, have been taken by a reasonable employer to have him medically examined further prior to dismissing him.

8.	The claimant appeals against that decision, contending that the Employment Tribunal should have found that the reason for his dismissal was not capability but was that he had made a protected disclosure.  The respondents cross appeal, contending that the Employment Tribunal should have found that they acted reasonably in dismissing the claimant. 

Relevant Law:
9.	The relevant legislative provisions, which were taken into account by the Employment Tribunal, are:

Section 98(1) and (2) of the 1996 Act :
“(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a)	(a)                       the reason (or, if more than one, the principal reason) for the dismissal, and
(b)	(b)                       that it is either a reason falling within subsection (2)  or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held .
(2)	A reason falls within this subsection if it –
(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do …”

Section 103A of the 1996 Act:
“An employee who is dismissed shall be regarded for the purposes of Part X as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

and section 43 of the 1996 Act which defines a protected disclosure as a qualifying disclosure which is, in turn, defined in Sections 43B(1) as including any disclosure which in the reasonable belief of the employee making it tends to show:
“(d)	that the health or safety of any individual has been or likely to be endangered, or
(f)	that the information tending to show any matter falling within any one of the preceding paragraphs has been or likely to be deliberately concealed.”

The Facts:
10.	The respondents are a regional airline based in Glasgow and flying on routes that are operated on the basis of a franchise from British Airways.  They also provide an air ambulance service.  They fly mainly small aircraft on island routes.  The claimant was employed by them as an airline pilot based at Tingwall Airport in Shetland.  He flew a BN2 aircraft on the basis that he was the sole aircrew. 

11.	On 30 March 2001, during the foot and mouth outbreak, the claimant was splashed with the disinfectant FAM30, which was being used to soak foot mats, when he was walking out to his aircraft.  He became unwell that day and he completed an air safety report regarding the incident with the disinfectant.  He was signed off work.  Put shortly, thereafter he repeatedly expressed the view that FAM30 was toxic, was responsible for his illness (which involved shortness of breath), and had been used by the respondents in contravention of health and safety requirements.  He conveyed these views not only to the respondents but also to the Civil Aviation Authority (‘CAA’), the Health and Safety Executive and Shetland Islands Council.  The respondents did not accept that exposure to FAM30 was responsible for the claimant’s ill health or that they had used the disinfectant inappropriately.

12.	The claimant remained signed off work on sickness absence following the incident on 30 March 2001 on account of shortness of breath.  He was medically examined on 22 August 2001 and, as a result, a limitation was placed on his pilot’s licence that it was “valid only as or with qualified co-pilot”.  By mid September 2001, the CAA had noted the restriction and the claimant had been advised of it.  He was also told, in terms of a letter from the CAA aeromedical officer, that it was envisaged that the limitation would remain in place for approximately 3-6 months.  The restriction was in fact extended following a further medical examination, in a further medical certificate dated 7 January 2002.

13.	The claimant was called to a meeting with the respondents on 25 October 2001 at which he was told that the respondents felt that they had no alternative but to terminate his contract.  Correspondence ensued and on 3 December 2001, Captain Akhurst wrote to the claimant advising him that since the restriction on his licence had not been lifted, the respondents were terminating his contract on 12 weeks notice.  Captain Akhurst added:

“We will be prepared to revoke this decision should you regain an unrestricted licence before the termination of your period of notice.  Your employment will therefore end on Tuesday 26th February 2002.

We have as I explained considered the possibility of alternative employment within the company, however, and for the foreseeable future, there are no vacancies on multi-crew aircraft or any opportunities to transfer existing staff to the single crew operation at Lerwick.  There are no other suitable positions available for you and we therefore have no alternative but to bring your employment to an end.”

14.	As indicated, the claimant, rather than regaining an unrestricted licence before the termination of the period of notice, was subjected to an extension of the restriction on his licence in terms of a medical certificate dated 7 January 2002.  At the time of the hearing before the Employment Tribunal, the restriction was still in place. 

15.	The Employment Tribunal found that the claimant had made protected disclosures in good faith but they found that the fact that the claimant ceased to hold the necessary licence to do the job for which he had been employed was the principal reason for his dismissal.  They then went on and considered whether the respondents had acted reasonably in dismissing the claimant and found that they had not done so because, in their view, the respondents were obliged to obtain an up to date assessment of the claimant’s state of health before deciding to dismiss him and they had failed to do so. 

Claimant’s Appeal:
16.	The claimant’s appeal was based, in submission, on two grounds.  Firstly, that the Employment Tribunal had erred in their characterisation of the principal reason for dismissal.  The Employment Tribunal had found that dismissal was on capability grounds but, so it was submitted, they had not made any finding that the claimant was required to work on single crew duties.  That submission was made under reference to the case of Wilson v The Post Office [2000] IRLR 834.  At times, however, the submission drifted into an attempt to argue that the Employment Tribunal should have found that the respondents’ motivation related to the claimant having made a protected disclosure, a ground of appeal which had been earlier rejected under Rule 3(7).  Secondly, it was submitted that the Employment Tribunal failed to apply the correct test with regard to the burden of proof in establishing what was the principal reason for dismissal, a submission which was made under reference to the case of Maund v Penwith District Council [1984] IRLR 24.  The Employment Tribunal ought, it was said, to have considered all the facts and after making findings as to the existence of the issue raised by the claimant that the making by him of a protected disclosure was the principal reason for the dismissal, ought to have considered the facts and, on a balance of probabilities what, on the evidence, was the reason for the dismissal.

Respondents’ Answer and Cross Appeal:
17.	In answer, it was submitted on behalf of the respondents that the claimant seemed to be seeking to argue the disallowed ground of appeal relating to motivation.  Insofar as it was argued that the Employment Tribunal had erred in their characterisation of the reason, the ground was not well founded.  The claimant could not work as a single crew pilot because of the restriction on his licence and that lack of capability fell fairly and squarely within the provisions of s.98(2)(a).

18.	Regarding the argument relating to onus, it was submitted that it was quite clear from the decision and reasons of the Employment Tribunal that they had, after a lengthy hearing with many documents to consider, analysed the facts, rejected the contention that the reason that the claimant was dismissed was because he had made a protected disclosure and found themselves satisfied that the reason for the dismissal was capability. 

19.	In support of the cross appeal, it was submitted on behalf of the respondents that the Employment Tribunal had erred in law in respect that they had not applied the objective test of the reasonable employer.  Rather, they had substituted their own view of what was reasonable action to take.  Reference was made to the well known dicta contained in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.  The Employment Tribunal had, it was submitted, gone much further than was required.  Having established that the reason for dismissal was capability, not ill health, it was illogical that they had then proceeded to find that the respondents should have made further enquiries regarding the claimant’s health.  It was not incumbent on them to do so.  There was no indication, in any event, that a further medical report would have made any difference since the claimant’s licence remained restricted even at the time of the hearing before the Employment Tribunal. 

20.	Further, it was submitted that the Employment Tribunal placed undue weight on the evidence of Professor Seaton and made assumptions about Dr Downie’s work which they were not entitled to make, no evidence having been given regarding it.  Dr Downie did not give evidence.  They placed an undue burden, in their approach, on the respondents, contrary to the principle that the question of whether or not a dismissal was fair is a neutral one: Boys and Girls Welfare Society v McDonald [1996] IRLR 129. 

Claimant’s Answer to Cross Appeal:
21.	It was pointed out by Ms McManus for the claimant that the Employment Tribunal had taken up quite a few pages in considering the question of reasonableness of the respondents’ response, in the course of which they discuss the evidence regarding the possibilities of alternative employment for the claimant.  However, ultimately, her position was that what the Employment Tribunal had decided was that the respondents did not act reasonably not because they did not offer the claimant alternative employment but because they did not obtain an up to date medical report. 

22.	It was submitted that the Employment Tribunal had not substituted their own view but had been careful to consider the reasonableness of what was done.  Reference was made to their assessment of Professor Seaton’s evidence and rejection, at p.20, of Captain Akhurst’s claim that “there was little purpose in conducting a further assessment”. 

The Legal Principles:
23	The relevant principles which fall to be applied in this case would appear to be firstly that where an employee alleges that he has been unfairly dismissed, there is an onus on the employer to establish the reason or, if more than one reason, the principal reason for the dismissal.  If the employee seeks to counter the employers’ case as to the reason for the dismissal, then he must raise the issue in evidence (Maund v Penwith District Council) but once he has done so, the onus remains on the employer to prove the reason for the dismissal.  If that onus is discharged and it is shown that the reason for dismissal fell within one of the categories referred to in s.98(1) and (2) of the Employment Rights Act 1996, it is then for the Employment Tribunal to assess whether the dismissal was fair or unfair, bearing in mind the provisions of section 98(4) of the 1996 Act.  That is a question that the Employment Tribunal requires to decide not on the basis that there is any onus on the employers to satisfy them that they acted reasonably but on the basis that that question is a ‘neutral’ one (Boys and Girls Welfare Society v McDonald).

24.	Secondly, if it is shown that the reason, or the principal reason, for dismissal is that the employee made a protected disclosure then the dismissal will automatically be regarded as unfair. 

25.	Thirdly, in determining whether or not an employer has acted reasonably in treating an employee’s incapacity as grounds for dismissal, the Employment Tribunal are bound to apply not their own opinion as to what would have amounted to reasonable and adequate investigations and enquiries but the objective standard of the reasonable employer as to what was reasonable in the circumstances (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23). If the employers’ response was within the range of responses that were reasonable in the circumstances, then the dismissal is fair.  To put it another way, the dismissal will be regarded as unfair if the employers’ response was one which no reasonable employer would, in all the circumstances, have had. 

26.	Fourthly, an appeal lies against the decision of the Employment Tribunal only on a question of law (Employment Tribunals Act 1996 s.21). 

Conclusions:
27.	Claimant’s Appeal:
1.	We are readily satisfied that the Employment Tribunal made no error in their characterisation of the reason for the claimant’s dismissal.  They found that the reason was that the claimant’s pilot’s licence had become restricted.  The restriction was such as to prevent him from carrying out single crew duties, namely, the duties of his employment.  Clearly, a matter of capability arose and the Employment Tribunal were correct, having determined that the licence restriction was the reason for dismissal, to find that it fell within the category set out in s.98(2)(a) of the 1996 Act. 

28.	We would add that it did seem that the claimant was seeking, under this ground of appeal, to argue the question of motivation which had been excluded from the appeal at an earlier stage.  It was not appropriate or indeed, competent, to do so. 

29.	As regards the matter of onus, we are also readily satisfied that the Employment Tribunal properly understood and applied the relevant law.  They asked themselves whether the respondents had shown a potentially fair reason for dismissing the applicant, they took account of the protected disclosure issue that was raised by the claimant and made a finding that he had made a protected disclosure in good faith, they considered the evidence and they concluded that the contractual ground of ceasing to hold the necessary licence for the job was the principal reason for the dismissal.  That was something that they were entitled to do on the evidence before them, particularly since, as they explain, it was apparent that it was not until the respondents obtained a copy of the claimant’s restricted certificate in October 2001 that they took steps to consider his position. 

30.	We shall, accordingly, dismiss the claimant’s appeal.

Respondents’ Cross Appeal:
31.	As was commented by Ms McManus, the Employment Tribunal discuss, at some length, the evidence regarding the possibility of the claimant being offered alternative employment.  They are critical of the respondents and clearly sympathetic to the claimant.  However, at no stage do they make any finding or reach any conclusion that applying the objective standard of the reasonable employer, such an employer would have offered the claimant alternative employment of some kind.  They do not go that far.  Rather, as was recognised by Ms McManus, in the end of the day, they confine themselves to a finding that the respondents should have obtained a further medical certificate. 

32.	At page 21 of their extended reasons, the Employment Tribunal set out their determination on the question of the reasonableness of the respondents’ response:

“…we considered that a reasonable employer would have obtained an up to date assessment of the applicant’s state of health, particularly in the light of ongoing improvement in his health and his fitness for some work, before deciding whether to dismiss, because in the circumstances his health was the factor which caused the restriction in his licence, which in turn resulted in the lack of capability to perform his duties.”

33.	That conclusion seems to us to be flawed.  Firstly, it seems evident from that conclusion that the Employment Tribunal’s approach involved their assuming that a further medical examination would, in some way, have assisted with the restriction on the claimant’s licence, yet Dr Downie had no power to alter that restriction.  Secondly, the Employment Tribunal seem to have placed weight on “such assessments being Dr Downie’s bread and butter” in support of their view that there should have been a further medical examination carried out.  We are not entirely sure what is meant by that comment.  It cannot be based on anything said by Dr Downie as he did not give evidence.  Further, even if he did routinely carry out such examinations, we do not see that that is of any relevance when considering whether this claimant should have had a further examination which could not, as Dr Downie did not, as we have noted, have the requisite power, have resulted in the lifting of the restriction on his licence.  If the point of the examination was meant to be that his fitness for some work could have been identified thereby, there would seem to have been little point in that as there was evidence, accepted by the Employment Tribunal that the claimant had already become fit to do some work again, albeit not to the level required before his pilot’s certificate could be unrestricted.  In any event, the Employment Tribunal’s conclusion appears to be directed to the matter of the restriction in the certificate rather than to any possibility of alternative employment.  There is no suggestion at all that a further medical examination would have made any difference in that respect. 

34.	Thirdly, the Employment Tribunal seem to place much weight on the comments by Professor Seaton to the effect that it was extraordinary that the claimant had been dismissed without there having been an up to date medical examination.  Professor Seaton’s comments might be understandable if the context were that the claimant’s dismissal had been on the grounds of ill health.  But, as the Employment Tribunal expressly accepted, it was not, which calls into question the value of Professor Seaton’s evidence on that matter.  We also agree with Mr Brown’s submission that the Employment Tribunal were wrong to place any significant weight on Professor Seaton’s evidence that the opinion of Dr Downie’s that was referred to would have been given in writing by him when they did not hear any evidence from Dr Downie himself on that matter.

35.	Finally, and importantly, we cannot identify any attempt by the Employment Tribunal to assess the respondents’ response from the objective standpoint of the reasonable employer, taking account of the fact that, normally, a range of possible responses will arise.  In suggesting the step of having the claimant subjected to a further medical examination (which could not have had the effect of removing the restriction from the claimant’s pilot’s licence) we consider that the Employment Tribunal fell into the error of substituting their own standards of what was a reasonable response by the respondents to being faced with a situation whereby the claimant was not capable of carrying out the duties for which he had been employed. There is no inkling of their having applied the objective standard of the reasonable employer.

36.	In our judgment, on the facts of this case, the only conclusion that a reasonable tribunal can reach is that the response of the respondents was reasonable in the circumstances.  They were faced with the claimant’s pilot’s licence having been restricted in such a way as to render him incapable of carrying out his duties.  They were not presented with any medical evidence or advice to the effect that his medical condition was likely to improve in the near future to the extent that the restriction would be lifted.  They gave him twelve weeks notice and nonetheless indicated that they would revoke their decision to dismiss if he gained an unrestricted licence again during the notice period.  In these circumstances, we are satisfied that, applying an objective standard, they acted reasonably and that the dismissal was, accordingly, fair. 

37.	We shall, accordingly, allow the cross- appeal, the effect of which will be to reverse the finding that the respondents unfairly dismissed the claimant.  No continuation of the case will, accordingly, now be necessary.