Appeal No. UKEAT/0643/11/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
10 May 2012
Before
HIS
HONOUR JUDGE PETER CLARK
MR R LYONS
MR B M WARMAN
FIRST
HAMPSHIRE & DORSET LTD APPELLANT
MR
V S PARHAR RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
Ill health capability dismissal. Section 98(4) Employment
Rights Act 1996 reasonableness judged by Employment Tribunal only as at
EDT; ET ought to have considered the whole disciplinary process, including
subsequent appeals; West Midlands Co-operative Society Limited v Tipton
[1986] IRLR 112; Taylor v OCS Group Limited [2006] IRLR 613. Appeal allowed; fairness issue remitted to same ET.
HIS HONOUR JUDGE PETER
CLARK
1.
This appeal raises a short point on the relevance of an internal appeal
procedure following dismissal on the fairness of that dismissal applying section 98(4)
of the Employment Rights Act 1996.
2.
The parties before the Southampton Employment Tribunal were
Mr Parhar, Claimant, and First Hampshire & Dorset Limited, Respondent.
The Respondent operates a transport service which employed the Claimant as a
bus driver from 8 December 1979 until the effective date of
termination of his contract on the grounds of ill‑health incapacity on
10 June 2010. He was then given 12 weeks pay in lieu of notice.
3.
His complaint of unfair dismissal came before a Tribunal chaired by
Employment Judge Gardiner. It was defended. By a Judgment with Reasons dated
10 August 2011 the Tribunal held that the Claimant’s dismissal was
unfair, but that there was a 50% chance that had he not been dismissed on
10 June 2010, then at a subsequent sickness review held about
8 weeks later that he would have made a significant recovery such as to
allow him to continue his employment. Remedy was adjourned on that basis.
4.
The factual background, as found by the Tribunal, is that the Claimant
commenced a period of sick absence on 3 November 2009. He never
returned to work before his dismissal by Mr Morgan on
10 June 2010.
5.
During the intervening period he was seen by a Dr Bond of
Occupational Health. She reported initially on 4 December 2009. On
25 March 2010 a grievance which he had raised was dismissed. A
sickness meeting was held on 8 April 2010 and on
26 April 2010 Dr Bond saw the Claimant again. Her opinion at
that stage was that it was difficult to see how he would return to work. On
24 May 2010 his appeal against the outcome of his grievance was
dismissed and on 2 June 2010 Dr Bond saw him for a third time.
In her report dated 7 June 2010 she noted that the Claimant had said
that he wanted to continue to work as a bus driver for the Respondent but was
not yet well enough to do so. Indeed, he did not have the confidence then to
drive his own motorcar. She was of the opinion that the Claimant was not
likely to be fit to return to driving buses for at least 8 weeks; it could
be longer.
6.
On that state of the Respondent’s medical advice, Mr Morgan proceeded
to dismiss the Claimant at a meeting on 10 June 2010. Against that
decision the Claimant appealed, first to Ms Bainbridge, who dismissed his
appeal, following a hearing, by a letter dated 25 June 2010 and
finally to the Managing Director, Mr Reddy.
7.
The Reddy appeal hearing took place on 4 August 2010, some
8 weeks after the Morgan hearing. Mr Reddy took into account the
Claimant’s very long service with the Company and proposed that he attend
training school for a driver assessment in 5 days’ time. The Claimant
said he would have to check with his General Practitioner, but Mr Reddy
was not prepared to wait any longer. He dismissed the appeal.
8.
In expressing their conclusions on whether dismissal on capability
grounds fell within or outside the band of reasonable responses
(paragraph 49), it is clear to us that the Tribunal judged that
reasonableness question as at the effective date of termination,
10 June 2010. Their finding (paragraph 50) was that it fell
outside the band to dismiss the Claimant on 10 June 2010 with pay in
lieu of notice, rather than wait for a further 8 weeks to see whether
Dr Bond’s potential timescale was realistic. The Tribunal stopped the
fairness clock at the effective date of termination; they did not consider, in
relation to reasonableness, what if any effect the subsequent appeal process
might have had on that question.
9.
That, submits Mr Sutcliffe for the Respondent, was an error of
law. We agree. It is plain from the House of Lord’s decision in West Midlands Co‑operative Society Limited v Tipton
[1986] IRLR 112, applied by Court of Appeal in Taylor v OCS
Group Limited [2006] IRLR 613, that in determining the
reasonableness of the Respondent’s decision to dismiss for a potentially fair
reason, here ill‑health capability, the Tribunal must look at the whole
of the disciplinary process, including post‑dismissal internal appeals.
We are unable to accept Mr Self’s submission, on a fair reading of the
Tribunal’s Reasons, that they did properly take into account the appeal process
in determining fairness under section 98(4); on the contrary, it is plain
from paragraphs 49 and 50 that the Tribunal considered fairness only up to
and including the dismissal stage on 10 June 2010.
10.
That error is potentially material on the facts because
Mr Sutcliffe argues that since the unfairness (see paragraph 50)
found by the Tribunal consisted only of the Respondent failing to wait
8 weeks to see whether Dr Bond’s prediction for a return to work,
given on 7 June 2010, was accurate or not, that defect was cured by
the second appeal before the Managing Director on 4 August 2010. Taylor v OCS Group
makes clear that there is no material distinction to be drawn between an appeal
by way of review or by way of rehearing.
11.
We are not persuaded that the answer to the fairness question is so simple.
A judgment is still required as to whether the decision to dismiss the
Claimant’s second appeal on 4 August 2010 contributed to a fair or
unfair dismissal. That is a question which, in our judgment, should be made by
the fact‑finding Employment Tribunal and the same Tribunal which
originally heard the case and which has adjourned the remedy hearing. We shall,
therefore, allow this appeal and remit the question of fairness under section 98(4)
to the Gardiner Employment Tribunal for reconsideration, taking into account
the internal appeal process. It would be sensible to list the remedy issue to
follow the remitted liability hearing, should that question arise. Finally, it
will be for the Employment Tribunal to decide, in the exercise of its case
management powers, whether or not the parties may adduce any further evidence
on the remitted liability hearing.
