THE INDUSTRIAL TRIBUNALS
CASE REF: 1695/03
CLAIMANT: Carol Ferguson
RESPONDENT: 1. South Eastern Education & Library Board
2. John Mason
3. Mr McGinnity
4. The Governors of the Good Shepherd Primary School,
Poleglass
DECISION
The unanimous decision of the tribunal is that:
- The second named respondent John Mason, the third
named respondent Mr J McGinnity and the fourth named respondent the Governors
of the Good Shepherd Primary School, Poleglass be dismissed from the
proceedings.
- That the claimant's complaint of unfair dismissal
application be dismissed.
Constitution of Tribunal:
Chairman: Mr M Davey
Members: Mr R Robinson
Dr V Eakin
Appearances:
The claimant was represented first by Ms S Greene and then by Mr T Wright
both of NIPSA.
The respondent was represented by Ms A Finnegan, Barrister-at-Law,
instructed by the Solicitor for the Education & Library Boards.
REASONS
- The parties agreed that the appropriate respondent
to the proceedings was South Eastern Education & Library Board and that
all other respondents could be dismissed.
- The claimant, in her originating application,
alleged unfair dismissal contrary to the Employment Rights (Northern Ireland)
Order 1996. The issue for the tribunal was whether the reason for the
claimant's dismissal fell within the reasons set out in the relevant
legislation and whether, in the circumstances of the case, the employer had
acted reasonably.
- There was no real dispute about the facts. The
claimant was employed as a classroom assistant at the Good Shepherd Primary
School, Poleglass. Her work record had been satisfactory. In February 2003,
the claimant submitted a medical certificate indicating that she would be off
work due to sickness as from 19 February 2003. The certificate extended to 8
April 2003. In or about the middle of March it was reported to the Headmaster
by one of his teachers that the claimant's husband had described her as having
been attending evening classes during this period of sickness. The Headmaster
was concerned and raised his concerns with the relevant official of the
respondent Board (the Board). That official wrote to the claimant requesting
her to return to work the following week with the indication that if she
disagreed with that determination she could appeal. She did so. She was
referred for medical examination by Doctor Glasgow, described as an
independent occupational physician. The claimant attended for examination
accordingly. At the time of this examination Doctor Glasgow had available to
him a medical certificate from the claimant's General Practitioner and was
aware that she was due to see a specialist. Doctor Glasgow reported to the
Board that the claimant was suffering from a significant affective (mood
related) disorder both in relation to her current circumstances and her past
history. He considered her condition to be such that he did not see that it
would speedily resolve and further considered that she would remain unfit for
work for the foreseeable future. His final conclusion was that her medical
condition would persist for the foreseeable future and that this would cause
her significant difficulty providing regular, reliable or sustained attendance
at work.
- The Board informed the claimant of these findings
and indicated that they were proposing to terminate her employment in the
future and advising her of the consequences if they did so. The letter, of 10
April 2003, went on to indicate that if the claimant disagreed with the
medical advisor's opinion the matter could be appealed. Details of how to
appeal were given. The claimant exercised her right of appeal by letter dated
29 April 2003.
- The Board arranged, pursuant to the appeal
procedure, for a further medical examination by a Doctor Jenkinson. Pursuant
to the procedure the Board advised the claimant that if she objected to the
medical advisor she could do so. No objection was raised. However, a letter
was sent by her trade union requesting an immediate lifting of the threat of
dismissal and advising that the claimant would not be attending the
appointment arranged. It was indicated that she would probably be well enough
for an independent medical consultation at some stage and that, in the
meantime, she might be prepared to allow the Board to obtain a report from her
GP. The union requested a copy of Doctor Glasgow's report. This was sent by
the Board with a letter of 8 May 2003 which recommended that the claimant
attend the independent medical examination which would allow her the
opportunity to make
representations concerning the medical report. It was also indicated that a
copy of the union letter would be forwarded to Doctor Jenkinson for his
consideration. The union were advised that the Board would receive a report
from Doctor Jenkinson and would then notify both the union and the claimant of
the outcome. This letter was copied to the claimant herself. The union
responded with a letter indicating that they were in the process of obtaining
medical evidence which they intended to use and indicating that the proposed
appointment with Doctor Jenkinson for the following day would have to be
postponed. The Board agreed to this postponement by letter of 13 May. That
letter advised the union that written submissions, including supporting
medical evidence, could be made to the independent medical advisor and that
all written submissions would be provided to him by the Board. The letter
further indicated that at the examination the claimant would have the
opportunity to make all representations in support of her appeal. The medical
examination was re-arranged for Thursday 5 June. This information was conveyed
separately to the claimant as well as to the union and the claimant was
advised that if she wished to discuss the matter she could contact the
relevant Board official by telephone. No contact was made by the claimant but
on 3 June the claimant's union responded to the Board's letter indicating that
the claimant would be perfectly willing to attend an independent medical
examination 'at the appropriate juncture provided the examination is to be for
a meaningful purpose'. The letter concluded with the information that the
union official had advised the claimant not to attend the examination. The
claimant's evidence was that she was concerned that if she had attended for
examination she would have had a panic attack such as she had had when she had
been to see Doctor Glasgow. She therefore sought that her union would offer
her medical records with a view to slowing the process down. Slowing the
process down seemed to be the claimant's over-riding concern. The tribunal
accepted this evidence.
Following the claimant's non-attendance for examination the Board wrote to
her indicating that the appeal had not been upheld and that her employment
would be terminated on health grounds.
- The real issue for the tribunal was whether, in the
circumstances, the employer had behaved reasonably. There was no suggestion on
either side that there was any legal issue involved. The matter was one of
fact. The Board was faced with a medical opinion that the claimant would be
unfit for work for the foreseeable future. In the face of this information
they had proposed the claimant's dismissal on health grounds. In the
tribunal's view that was a reasonable reaction. The agreed procedures provided
for an appeal against the medical examiner's opinion. That appeal was offered.
The Board arranged for a further examination. The reaction of the claimant's
union to this was to advise that the claimant would not be attending the
appointment. The reason given was that it was contra indicated by her reaction
to the appointment with Doctor Glasgow and an indication was given that she
would probably be well enough for independent medical consultation in the
future. The letter also opened the possibility of obtaining a report from her
GP. The Board responded advising that attendance at the examination was
recommended. However, following a further letter of 13 May which indicated
that the claimant was in the process of obtaining medical evidence which the
union intended to use on seeking a postponement of the appointment a
postponement was in fact arranged. No medical evidence was put forward either
with the letter of 7 May from the union or with the letter of 13 May.
Immediately prior to the appointment with Doctor Jenkinson the union wrote
again merely stating that the claimant was perfectly willing to attend an
independent medical examination though this willingness was qualified by
indicating that it would be 'at the appropriate juncture' and 'provided the
examination was to be for a meaningful purpose'. No medical evidence was
submitted with this letter either. In the tribunal's view it was reasonable
for the Board to arrange for the second medical examination as, indeed, is
provided for in the agreed procedures. The tribunal also considered it
reasonable for the Board to expect the claimant to attend at any re-arranged
meeting unless a good reason to the contrary was shown. In this case the
suggested reason was that attendance was contra indicated because of the
claimant's reaction to the previous examination. No medical evidence was
provided to support this assertion when it was originally made; a hint of
medical evidence being forthcoming was made in the letter of 13 May but in the
final letter from the union no reference is made to any medical reason for the
claimant's non-attendance, the letter merely concluded with a statement that
the union official had advised the claimant not to attend. In such
circumstances the tribunal considered that the Board had a right to expect a
proper reason for postponing or deferring the examination. The claimant was
very clear that she wanted the examination delayed but that, in the tribunal's
view, is not enough. A medical examination was appropriate; it had been
arranged; it was reasonable to expect that anyone who wished to re-arrange it
should provide a reason for so doing. No such reason was provided. The
claimant in her evidence to the tribunal said she had had a panic attack at
the previous examination and that she was afraid she would have another if
faced with a further examination at that time. However, neither she nor anyone
on her behalf made this clear to the Board.
It was suggested on behalf of the claimant that the Board were aware that
she had been in an emotional state at the time of the previous examination and
they were. That, however, is a far cry from being a clear indication that a
further examination is contra indicated. It was suggested that the Board had
not given any precise information as to how or where any medical evidence or
submission could be made. It is possible that, had the claimant been an
unrepresented and inexperienced person that might have increased the Board's
responsibilities but in this case the claimant was being represented by an
experienced union official in a major union. In any event the Board had
indicated that written representations including medical evidence could be
made direct to the medical examiner and that any written submissions would be
forwarded by the Board. It was suggested that the claimant had made various
offers in her letters about further information and had held out the
possibility of an independent examination. However, the prospect of an
examination was always on the basis that it should be at some 'appropriate'
time with no indication being given as to when that might be. Her offers of
information were qualified, the nature of any medical evidence which might be
forthcoming, apart from the claimant's GP records, was never defined. The
Board was in the position of having arranged a medical examination in a proper
way, of being asked to re-arrange it on the basis of a mere assertion of
medical problems and then being faced with a further request, not to say
demand, for postponement without any supporting evidence to back the request.
The tribunal does not consider it unreasonable for the Board to expect the
examination to proceed. Once having proceeded the Board was then faced with
having no further evidence of the claimant's condition apart from the original
opinion that her health was such that she would be unable to work for the
foreseeable future. The tribunal considered that the original proposal for
termination was reasonable in the face of that opinion and it finds that the
actual termination, when left with nothing other than that opinion, was also
reasonable. Accordingly, the application falls to be dismissed.
Chairman:
Date and place of hearing: 20 and 21 June 2005 and
18 October 2005, Belfast.
Date decision recorded in register and issued to parties:
