Appeal No. UKEATPA/0469/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 2009

Before
HIS HONOUR JUDGE PETER CLARK 
MR B BEYNON
MRS A GALLICO

MISS B CHAPLIN	APPELLANT

HOWARD KENNEDY SOLICITORS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SATTAR SHAH
(Representative)	
For the Respondent	MS ANYA PALMER
(of Counsel)
Instructed by: 
Messrs Pattinson & Brewer Solicitors
Albert House
1-4 Singer Street
London  EC2A 4BQ

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal
Employee refusal to consent to disclosure of medical records for purpose of medical examination by OHS doctor.  Whether dismissal fair.  Employment Tribunal held that internal appeal corrected earlier procedural defect.  Dismissal fair.  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK
1.	This is an appeal by Miss Chaplin, the Claimant before an Employment Tribunal sitting at London Central chaired by Employment Judge Tayler, against that part of the Tribunal’s judgment, promulgated with reasons on 28 November 2007, which dismissed her complaint of unfair dismissal brought against her former employer, the Respondent Howard Kennedy, a firm of solicitors. The Tribunal also found that the Claimant suffered victimisation contrary to Section 2 of the Race Relations Act 1976 and that her summary dismissal was wrongful at common law.  There is no cross appeal against those findings.  Finally, the Tribunal concluded that had she not been subject to discrimination in the form of victimisation, she would have been dismissed in any event by reason of her refusal to give consent for an occupational health doctor to have access to her medical records so as to permit the provision of a medical report.

Background
2.	The Tribunal has set out its findings of fact in some detail.  For the purposes of this appeal we summarise the facts found as follows.  The Claimant, who is black, commenced her employment with the Respondent as a Document Production Technician on 27 September 2004.  On 10 March, 24 August and 26 October 2006 she lodged three separate form ET1s with the Employment Tribunal, collectively alleging race discrimination, victimisation and harassment and breach of contract.  Those claims were combined and heard together by a Tribunal chaired by Employment Judge Pearl on 1 - 20 and 26 February 2007.  During that hearing, on 14 February, she lodged a fourth form ET1, alleging race discrimination, harassment and victimisation.  The first three claims were dismissed by the Pearl Tribunal by a judgment dated 5 April 2007.  The fourth claim was dismissed by a Tribunal chaired by Employment Judge Baron on 16 July 2007, following a hearing held on 2 - 4 July.

3.	The fifth claim, with which we are concerned in this appeal, was presented on 19 June 2007, the day on which her internal appeal against her dismissal by Charlotte Bishop, the Respondent’s Head of Practice and Management on 20 March 2007, was dismissed by Craig Emden, a partner in the Respondent firm.  As the Tayler Tribunal’s judgment shows, in her fifth form ET1 she complained of unfair dismissal, victimisation and breach of contract.

4.	Central to the Tayler Tribunal’s conclusion on the unfair dismissal claim are the Respondent’s attempts to ascertain the Claimant’s medical condition.  We begin with the contractual position, noted by the Tribunal at paragraphs 8 to 9 of their reasons.  By the statement of terms and conditions of employment provided to the Claimant it was set out as follows:
“The firm reserves the right to call for a medical examination through its occupational health advisers who are currently Company Health, to determine your fitness to work on general or specified duties.  However, the firm reserves the right to change this service provider at any time.”

And at paragraph 83 of the staff handbook, the following paragraph appears:

“The firm reserves the right to require employees to undergo medical examinations either for health and safety reasons, including the obtaining of third party approval to carry out assignments, or to establish the viability of ongoing employment.”

5.	We see that on appointment the Claimant gave consent for her General Practitioner, Dr Kumar, to provide a report stating that she was fit for work.

6.	From 16 February until 19 June 2006 the Claimant was absent from work, initially complaining of backache.  On her return to work she underwent a return to work assessment by Dr Vanessa Swanepoel at Medicentre, which we believe had taken over from Company Health as the occupational health provider.  She was off sick with flu on 9 and 18 October.  Her medical certificate for that latter absence recorded “flu symptoms (stress anxiety)”.  A subsequent sick note, dated 30 October, referred to “stress related problem”.

7.	On 12 December 2006, by which time she had lodged her first three forms ET1, Stella Cairns, a Human Resources Consultant employed by the Respondent, wrote to the Claimant asking her to visit occupational health so that a medical report might be prepared.  The Claimant did not immediately reply.  She was then absent sick.  In response to a follow-up letter from Ms Cairns, dated 19 December, the Claimant replied on 21 December indicating that she would attend on occupational health on her return to work.  She did return on 8 January 2007 and was referred to Dr Greeff, whom she saw on 10 January.  Asked to give her consent for Dr Greeff to contact her GP, the Claimant refused to give that consent.  As a result, Dr Greeff prepared a discharge summary in these terms,

“Ms Chaplin was not very forthcoming during our consultation and didn’t want to inform me the cause of her work-related stress or give me consent to contact her GP.  Therefore, I couldn’t provide the company with much information about her current medical status or fitness to work.”

8.	As a result, Ms Bishop spoke with Dr Greeff.  Having observed that it was the first occasion in her experience where an employee had ever refused to give consent, that is to provide access to medical records, the doctor expressed her concern that she was not able to give a proper medical opinion.  Dr Greeff provided a report dated 12 January 2007 noting the Claimant’s reluctance to discuss the exact cause of her stress at work or to provide her consent to Dr Greeff contacting her GP.  That said, she expressed her belief that the Claimant was fit for work.

9.	On 18 January 2007 the Claimant submitted a report from Dr Kumar in connection with the Pearl Tribunal proceedings to the Respondent’s solicitors.

10.	Following the final day of hearing before the Pearl Tribunal on 26 February, when oral judgment was given, Ms Bishop emailed Medicentre for the attention of an employee there and Dr Greeff, expressing concerns about the Claimant’s mental health and stating that she needed the Claimant to be referred to a psychiatrist in order to understand what might be of assistance.

11.	On the same day, 27 February, Ms Bishop wrote to the Claimant referring to allegations which she had made about stress caused by the Respondent’s management;  expressing serious concern about her mental health and referring to paragraph 83 of the staff handbook.  She required the Claimant to attend a medical examination by Dr Greeff at 2 pm on 2 March 2007 and also required her to sign and return an enclosed form consenting to full disclosure of her medical records to Dr Greeff.

12.	The Claimant was warned in terms that her refusal to consent to disclosure and/or to attend the examination may result in the termination of her employment.  A copy of the Respondent’s standard medical consent form was attached to that letter.  The Tribunal noted that on its face disclosure could go to the Respondent’s Human Resources department as well as to the medical advisor.

13.	The Claimant replied on 1 March stating that it was unlikely she would be able to attend the examination on 2 March.  As a result the appointment was cancelled at some cost to the Respondent.

14.	On 6 March the Claimant left a message for Ms Bishop stating that she consented both to disclosure of her medical records and to attend a medical examination.  However, when Ms Bishop telephoned the Claimant back to say that she had not received the signed consent form, the Claimant retracted her consent and said that she would need more time.  In these circumstances Ms Bishop wrote to the Claimant on 6 March, urging her to provide the signed consent form but requiring her meanwhile to attend a disciplinary hearing treating her refusal to co-operate with the medical examination as potential misconduct.

15.	We should refer at this point to paragraph 45 of the reasons where the Tribunal record:

“On 8 March 2007 the Claimant wrote, stating that she would be prepared to visit occupational health but that she was unwilling to allow access to her medical records.  She stated that she would be able to attend the disciplinary hearing.”

16.	The disciplinary hearing before Ms Bishop took place on 15 March.  During that hearing the Tribunal found - paragraph 54 - that the Claimant did not give her unequivocal consent to the disclosure of her medical records.  In a note of the meeting it is recorded,

“She (Ms Bishop) pointed out that in the face of a direct allegation of insubordination, all BC (the Claimant) had done was smile.”

17.	The upshot of the disciplinary hearing was that Ms Bishop summarily dismissed the Claimant by a letter dated 20 March 2007.

18.	Against that decision the Claimant appealed internally.  Her appeal was dealt with by Mr Emden.  Even at this stage he was prepared to give her a further chance.  On 11 May he wrote to the Claimant, following an appeal hearing held on 26 April at which the Claimant said that she “may be willing to give access”, inviting her (we emphasise that formulation) to give her written consent to disclosure of her medical records, enclosing a standard form for that consent.

19.	The Claimant’s response, apart from raising a further grievance (a number had preceded this one), in a letter dated 18 May was to state that she was unable to comply with his request because she was no longer an employee of the firm and therefore no longer bound by the contract.  Further, she was not content for the Respondent firm to have access to her medical information.

20.	Dealing with the Claimant’s second objection, following further correspondence, Mr Emden wrote to her on 14 June including a specially revised draft consent form which provided expressly for disclosure of her medical notes to the Respondent’s medical adviser “(and not to Howard Kennedy direct)”.

21.	The Claimant’s response, by letter dated 16 June, was to reiterate that as she was no longer an employee and no longer bound by the contract, that is the contract of employment, she complained of a breach of trust and confidence (presumably the implied term of the contract by which she no longer considered herself bound), complained of deceit on the part of Ms Bishop and concluded by saying that she believed the matter had been thoroughly exhausted.  She did not return the revised, or any consent form, signed by her and has never done so.  In the light of that letter Mr Emden dismissed her appeal on 19 June, hence the Claimant’s fifth complaint to the Tribunal. 

Unfair Dismissal - The Tribunal’s Conclusion
22.	Having found that Ms Bishop was guilty of victimisation in dismissing the Claimant, in that she had done protracted acts, including the Pearl Tribunal proceedings which was a significant factor, but not the principle reason for dismissal in the mind of Ms Bishop, they went on to express their conclusions on the unfair dismissal claim at paragraph 123 in this way:

“Dealing with the claim of unfair dismissal, although victimisation was a factor, we consider that the principal reason for the Claimant’s dismissal was the fact that she refused to undergo a medical examination in circumstances where the Respondent had legitimate concerns about her ill health.  Whereas we consider that Ms Bishop acted hastily at the disciplinary hearing in not giving the Claimant a further opportunity to either consent, or by giving her a final written warning that she must comply within a short time, we consider that this was fully rectified during the appeal process, during which the Claimant was given a number of opportunities to give her consent.  Mr Emden specifically designed a consent form in an attempt to deal with the Claimant’s concerns.  She made it perfectly clear that, come what may, she would not consent.  Accordingly, we consider that the Respondent has established that the principal reason for the Claimant’s dismissal was her conduct in refusing to sign the consent form.  Having regard to the full process including the appeal, we conclude that the Respondent had a genuine belief in the Claimant’s guilt, formed after reasonable investigation and on reasonable grounds.  We consider that dismissal fell within the range of reasonable responses, in circumstances in which the Claimant was adamant that she would not permit perusal of medical records by occupational health so that they could produce a proper report that would determine whether the Claimant could return to work.  Accordingly, we find that the Claimant’s dismissal was fair.  If we had considered the position only at the stage of the dismissal we would not have considered the dismissal fair, as the Claimant was not given adequate opportunity to consider her position and to give consent.  However, this was rectified on appeal.”

The Appeal
23.	The Claimant’s first Notice of Appeal was rejected by Elias P on the paper sift under Rule 3(7) of the EAT Rules.  A fresh Notice under Rule 3(8) was similarly rejected by HHJ Serota QC.  The Claimant then exercised her right to an oral hearing under Rule 3(10), which came before Silber J on 3 November 2008.  She had appeared in person before the Tayler Tribunal; before Silber J she was represented by Mr Shah, as she is today.  Ms Palmer of Counsel has represented the Respondent throughout.

24.	Silber J permitted the appeal to proceed to this full hearing before a full division of the Employment Appeal Tribunal on limited grounds.  They are identified at paragraph 1 of his order dated 4 November in these terms,

“1.	The Appellant’s application pursuant to Rule 3(10) is allowed solely upon the following grounds, with all other grounds being abandoned,
	i)  	Whether during the respondent’s appeal procedure conducted by Mr Craig Emden after the claimant’s employment had ceased, the respondents were entitled to require the claimant (pursuant to her original contract of employment) to consent to disclose her medical records and draw inferences adverse to the claimant from her failure to consent rather than asking her to agree to such disclosure as a condition of reinstating her and/or after reinstatement had taken place.
	ii)	Whether the Employment Tribunal was entitled to find (a)  that the principal reason for the claimant’s dismissal was that she refused to undergo a medical examination in paragraph 123 of its Reasons, when it had also found in paragraph 45 of its Reasons that the claimant had written on 8 March 2007 stating that she would be willing to undergo a medical examination, and (b) that the failure by the claimant to consent to the disclosure of her medical records was a reasonable ground for disciplinary proceedings for gross misconduct leading to the penalty of dismissal in the light of the statutory rights to refuse to consent set out in the Access to Medical Reports Act 1988.”

Discussion
25.	Dealing with the first permitted Ground of Appeal we have concluded that it represents a proposition of law wholly detached from the facts of this case.  Mr Emden did not invoke the contractual term to require the Claimant to sign the amended form of consent;  he invited her to do so - as the Tribunal found based on his letter of 11 March 2007.  It was never suggested by the Respondent below, nor here, that the contract was not terminated by Ms Bishop summarily dismissing the Claimant.  What is here overlooked is the principle in West Midlands Co‑operative Society v Tipton [1986] IRLR 112 (HL) to which the Tribunal directed themselves at paragraph 99 of their reasons.

26.	In judging fairness under section 98(4) of the Employment Rights Act 1996 the Tribunal is entitled to take into account what happened at the appeal stage notwithstanding earlier termination of the contract of employment by dismissal.  Here, Mr Emden gave the Claimant a further opportunity to sign the consent form and she declined.  He thus, in the judgment of the Employment Tribunal, cured the procedural defect which it found occurred at the dismissal stage, that is Ms Bishop acting too quickly in moving to dismissal before the Claimant had a proper opportunity to decide whether or not to give her consent to disclosure of her medical records.  That was a permissible finding in our judgment.

27.	As to ground 2(a), we must look at the reasons as a whole in the context of the contested issues between the parties.  It was common ground that the Respondent’s reason for dismissal was the Claimant’s refusal to give her consent to disclosure of her medical records.  The Tribunal accepted that that was the Respondent’s reason in the middle of paragraph 123.  Their earlier comment that the principal reason was the fact that she had refused to undergo a medical examination was plainly in our view an error.  Given their earlier factual findings, particularly that at paragraph 45, that she had consented to the examination but not to disclosure of her records, we do not see any real confusion caused by that simple error.  It does not, as Mr Shah submits, vitiate their finding of fair dismissal.

28.	Finally, ground 2(b).  It is plain to us that the Access to Medical Reports Act 1988 was not invoked by the Claimant below.  Nor she did she argue that a contractual requirement to undergo a medical examination did not include an implicit requirement that medical records reasonably required by the employer for the purpose of a medical examination would not be unreasonably withheld by the employee.  Accordingly we accept Ms Palmer’s submission, applying the helpful summary of the law in Secretary of State for Health v Rance [2007] IRLR 665, paragraph 50 (per HHJ McMullen QC) that this new point should not be permitted to be raised on appeal for the first time.  Further consideration would be required by the Employment Tribunal.

29.	But even if we had entertained the point we would reject it.  The 1988 Act prevents access to medical records without the patient’s consent.  It does not prevent an employer deciding that an employee who unreasonably refuses a reasonable request, as happened in this case, should be subject to disciplinary proceedings.

30.	In these circumstances, having considered the various ways in which the appeal is put, we find no error of law on the part of the Employment Tribunal and consequently this appeal fails and is dismissed.