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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> FWM Plastics Ltd v Muers [1994] UKEAT 567_93_1602 (16 February 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/567_93_1602.html Cite as: [1994] UKEAT 567_93_1602

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BAILII case number: [1994] UKEAT 567_93_1602

Appeal No. EAT/567/93, EAT/568/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR E HAMMOND OBE

MR J C RAMSAY

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FWM PLASTICS LTD          APPELLANT

MR M H MUERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P SCHOFIELD

(LEGAL ADVISER)

Engineering Employers

Federation South

Station Road

Hook

Hants. RG27 9TL

For the Respondents MR P TOPSELL

(COUNSEL)

Messrs Rootes & Alliott

27 Cheriton Gardens

Folkestone

Kent CT20 2AR


 


MR JUSTICE WATERHOUSE: These are two Appeals from decisions made by an Industrial Tribunal sitting at Ashford in April and June 1993. The first decision, which was unanimous, was that the Appellants had unfairly dismissed the Respondent employee. The second decision, again a unanimous decision, made on 23 June 1993, was in relation to the assessment of the awards to be made to the Respondent. There is no dispute about the basic award of £3,770.67 but the Appellants challenge the assessment of the compensatory award at £3,409.42 on the ground that it was excessive or more realistically, (it is said on behalf of the Appellants), that the evidence did not justify any compensatory award.

The brief facts of the case are that the Respondent began his employment effectively on 15 March 1976 and it was terminated on 4 October 1991. The Appellants carry on a business which is part of a larger company called Arlan. Arlan produce and distribute electrical wiring. They have a very substantial turnover and 300 employees. The Appellants have 165 employees and they produce and distribute mouldings.

The capacity in which the Respondent was employed was essentially that of a driver. He had to load vehicles, and drive to different locations to deliver and collect stock and/or work from clients and outworkers. He had then to return to base, off-load the work or stock and, according to the finding of the Industrial Tribunal, he was required also to perform general warehouse duties when needed. The loading and unloading involved the use of a forklift truck and, on occasions, a pump-up truck, which can raise pallets from the ground to make their positioning easier for loading on to vehicles. The Tribunal found that the Respondent could spend up to three to four hours per day loading and unloading vehicles.

A description of the work involved was before the Tribunal because, before the Respondent's dismissal, a letter was sent to his general practitioner containing a description of the work and asking for a comment upon the fitness of Respondent to carry it out. The Tribunal considered that letter, which need not be read for the purposes of this judgment, and they said that they accepted the Respondent's view that the effect of the first of the relevant paragraphs was to exaggerate slightly what was involved in the Respondent's work.

The background to the dismissal of the Respondent was a history of some 60 or so reductions in staff between December 1990 and Easter 1991. In addition to those redundancies, some staff took early retirement and others were laid off but the Appellant himself was not offered redundancy or early retirement.

He was a man who was born on 2 October 1937, so that he had just reached the age of 54 years when he was dismissed. The Appellants did not employ a personnel manager and the member of their management who was responsible for personnel matters in the transport, warehousing and purchasing departments was the director of those departments, Mrs Briggs, who was, in effect, the Respondent's manager.

According to the Tribunal's findings, Mrs Briggs told the Respondent in July 1991 that he would have to lose his overtime payments. The Respondent was unhappy about this and pointed out that they were not overtime payments but he was told that they would have to stop. Not surprisingly, the Respondent was annoyed about this reduction in his pay, which had been mentioned to him a number of times previously by Mrs Briggs.

The result of these exchanges, according to the Tribunal, was that the relationship between the Respondent and Mrs Briggs became strained at that point. The Respondent was at that time being paid more than other driver warehousemen and warehousemen drivers and that was a matter of concern to Mrs Briggs, who was anxious to bring his wages into line with the other workers and make a small saving. This was all part of a tightening of the financial reins and all overtime needed to be reduced.

The only other relevant matter that need be mentioned was that there was a change in the Respondent's duties in April 1991. He had had a set pattern of work for many years and was content with that. The work involved mainly long-distance driving. After the changes, however, the Respondent was employed on more short-distance work and this necessarily involved more unloading by hand. The effect was that his work became more arduous and he learnt through his supervisor that the change had been instigated by Mrs Briggs.

He did ask for his old duties to be reinstated after a few weeks of working under the new system but that request was refused and he was told that Mrs Briggs wanted the new regime to continue. The Respondent spoke to her about the matter but she confirmed that no change would be made.

The Tribunal's finding was that, by July 1991, the Respondent was unhappy at work, partly because he believed that Mrs Briggs was trying to make his working life difficult for him in order to force him to leave. He himself was not disinclined to leave because of the developments and he mentioned to other employees that a member of his family had been able to take early retirement and had obtained a substantial financial sum on doing so.

On 24 July 1991 the Respondent arranged a further meeting with Mrs Briggs at which his supervisor was also present. The Respondent did not recall what he said at the meeting and the Tribunal accepted the Appellants' evidence about the matter. Their finding was that the Respondent advised Mrs Briggs that he was so poorly with his lung that he could not continue to work and that he would have to leave because of ill health. The background to that was that the Respondent had had a cough and difficulty with breathing for over 40 years. All of the staff at the Appellant's premises who came into contact with him were aware that he had something wrong with his breathing, which was audibly impaired. He was thought by them to suffer from asthma and the Respondent was content to leave it at that. At his meeting with Mrs Briggs on 24 July 1991, however, the Respondent told her that he had only one lung and had emphysema in that remaining lung. He said that it would be the "end of him". Mrs Briggs was concerned about what he had to say, because that was the first time that she had been told about his condition. The Tribunal accepted that she was worried about whether she should permit him to drive because she did not know what emphysema meant and was worried that he might collapse over the wheel of a vehicle.

It was in those circumstances that Mrs Briggs asked the Respondent if she could write to his general practitioner to obtain a report and he gave his consent The Respondent, himself asked Mrs Briggs to find out what money and pension he would receive if he left and she agreed to do that. She told him also to find out what State benefits he would be entitled to. There was no discussion at that point of any date when it might be appropriate for the Respondent to leave.

After that meeting, Mrs Briggs checked the Respondent's record of sick leave and found that he did not have a high level of sick leave; and she was either already aware or found out that the Respondent completed all his tasks at work normally. She spoke to Mr Baker, who was the managing director, and he obtained a quotation of the Respondent's entitlement under the company's pension scheme. At some stage after that the Respondent was informed that only three months' pay would be available for him in the event of him leaving the Appellants' employ. The Tribunal accepted the Respondent's evidence that he told both Mr Baker and Mrs Briggs that he could not agree to leave if that was all he would receive.

The later events can be related quite shortly. The Respondent's general practitioner did reply briefly and the material part of his letter read as follows:

The above patient of mine has for many years suffered from chronic lung disease and emphysema, and there has been an undoubted gradual, but perceivable deterioration in his lung function. On examining the brief job description that you have provided in your letter, I would find it difficult to contemplate Mr Muers being able to do the manual part of his job to the fullest extent that you would wish."

There was no discussion of that report with the Respondent nor, indeed, any discussion or further discussion of his position in relation to retirement in the light of what he had been told about the limited payments that he would receive in such circumstances.

Mrs Briggs considered the letter from the general practitioner and enquired whether any suitable alternative work might be made available but she was not able to devise any solution of that kind. The Respondent was told that only 12 weeks' pay was available and made it clear that he could not leave if that was all that was on offer. Such discussion as there was took place between Mrs Briggs and Mr Baker. They decided that, in view of the content of the letter, they would not continue to employ the Respondent because he was not capable of doing the work required of him. They had to give the Respondent his proper pay in lieu of notice so that they could employ someone who was capable of doing the work. No question of redundancy arose.

The management did not seek any further medical evidence. Mrs Briggs, in her own evidence, accepted that she did not believe that the GP's letter was conclusive. Indeed, the Respondent continued to do his work normally and there was no absence through ill health but Mrs Briggs gave evidence that in dismissing the Respondent, she was only doing what he wanted because the Respondent wanted to leave. The Tribunal were satisfied, nevertheless, that Mrs Briggs, as his manager, failed to have any meaningful discussion with the Respondent about his dismissal before it took place. That dismissal was effected on 4 October 1991, when the Respondent was handed, a letter of dismissal, said to take immediate effect. He was shocked and upset at this, having been given no warning and having not had an opportunity to express his view. The second paragraph of the letter read:

"In view of the medical opinion offered by both you and your doctor, you are no longer fit to carry out the duties that are required of you."

A right of appeal is set out in the company's handbook. The Respondent's attention was not drawn to that right.

Having set out in the reasons the submissions that were made to the Tribunal by the Respondent who appeared in person and by Counsel on behalf of the Appellant, the Tribunal correctly directed themselves to the terms of Section 57(3) of the Employment Protection (Consolidation) Act 1978 and to the case law derived from that sub-section, noting in particular that they were not entitled to substitute their own judgment for that of the employer. They went on to say:

"In the case of a reason relating to capability through ill-health or disability, it is necessary that the employer should genuinely believe that the employee is no longer capable of doing his job, take reasonable steps to obtain sufficient medical (or other) evidence in order to inform themselves of the true medical position, or in order to make an informed decision on the same, reasonably consider all of the available evidence and consult with the employee before the dismissal."

That summary of the law was obviously derived from the well-known decisions of this Appeal Tribunal in cases such as East Lindsey District Council v G E Daubney [1977] IRLR 181 and Liverpool Area Health Authority (Teaching) Central & Southern District v J Edwards [1977] IRLR 471.

The Tribunal held, accordingly, that the reason for the dismissal was the employer's belief that the Respondent was no longer capable because of ill health to perform the duties required of him and that it was a reason relating to the Respondent's capability within the terms of Section 57(2) of the Employment Protection (Consolidation) Act 1978. On the issue of the reasonableness of the decision, their finding was that the Respondent had acted unreasonably in all the circumstances in treating that reason as a sufficient reason for dismissing the Respondent. The Tribunal said that they had taken into account that it was the Respondent who had first stated to the Appellants that he was no longer capable of carrying out his duties but they were satisfied that the Appellants were aware at the time that the Respondent wished to retire or resign only if a substantial sum of money were to be made available to him: when the Appellant had told the Respondent that only 12 weeks' pay would be available to him if he left, the Respondent had made it clear that he was not willing to leave if that was the full extent of their offer.

The Tribunal was satisfied also that the Appellants were aware that the Respondent had not been absent from work through illness for any excessive periods of time either before or after he had put forward his request. They knew that the Respondent would continue to do his work as normal. Although the Appellants had relied on the advice in the medical report taken together with the Respondent's express wish to retire or resign as a reason for his dismissal, the Tribunal were satisfied that the Appellants did not believe that the letter obtained from the GP provided any (acceptable) evidence that the Respondent was no longer capable of doing his job.

In attacking the reasons of the Tribunal, Mr Schofield, on the Appellant's behalf, has submitted, firstly, that there was no evidence to justify a finding by the Tribunal that the Appellants did not believe the contents of the letter from the general practitioner to the effect that the Respondent was no longer capable of doing his work. It is suggested that the correct inference from the history was that Mrs Briggs did believe that letter, written in response to an express query from her. We do not consider, however, that there is any real substance in this criticism of the Tribunal's reasoning. The reality of the matter is that the Tribunal found that the description of what was entailed in the Respondent's work had been pitched high in the second paragraph of Mrs Briggs' letter. They found also that Mrs Briggs had informed herself about the Respondent's actual capacity for his work and his attendance record before the letter was written so that she was well able to assess the contents of the report by the doctor, which did not amount to a great deal because it gave an account of a long term deterioration in the lung function of the Respondent, without going into greater detail, and the commentary upon the Respondent's ability to carry out the work was couched in careful terms and hinged entirely upon the brief job description contained in Mrs Briggs' letter. It may be that, with hindsight, the Chairman of the Tribunal would have formulated the particular sentence in which he referred to Mrs Briggs not believing the contents of the medical report in a slightly different way but there was abundant justification for the Tribunal reaching the conclusion that the medical evidence provided by the general practitioner was neither conclusive nor, indeed, very weighty as an assessment of the Respondent's actual capacity for the work for which he was employed.

The second submission made by Mr Schofield is that there was no basis for a finding that the Appellants knew at the time that the Respondent made his original request to retire that he only wished to do so if a substantial amount of money was to be made available. It is true that, in stating the Tribunal's conclusions the Chairman compressed events for the sake of brevity and it is apparent from the history related elsewhere in the reasons that the Respondent's attitude to the amount of money available was only made clear to the Appellants when he was told that he could only be paid 12 weeks' pay. However, that minor criticism of the phraseology or chronology in the statement of conclusions cannot have any impact on the validity of the Tribunal's reasons because it is perfectly clear (and was no doubt common ground at the hearing below) that the Appellants did know, by the time that the decision to dismiss was made, that the Respondent's attitude was that he was not interested in early retirement or anything of that kind because there was no adequate money to be paid to him in such circumstances on the basis of what he had been told by Mr Baker. Accordingly, the submission by Mr Schofield that an error as to the timing of the Appellants knowledge materially influenced the Tribunal in deciding that the Respondent had been unfairly dismissed is wholly unpersuasive and we turn to the other grounds of appeal.

The third major submission made by Mr Schofield is that the Industrial Tribunal erred in law in applying the principles enunciated by this Appeal Tribunal in the two cases to which we have referred. That is a difficult submission to sustain because Mr Schofield has to concede (and did so in the notice of appeal) that the Tribunal correctly summarised the law and the relevant test in paragraph 26 of their decision. It has to be suggested, therefore, that despite directing themselves correctly according to the law and expressly stating that it was not for the Tribunal to substitute their own view as to whether dismissal was appropriate, the Tribunal then went on to misapply their own direction by substituting its own view for that of a reasonable employer.

We cannot detect in the statement of reasons any such error on the part of the Industrial Tribunal in the statement of reasons. What stood out from the history of this matter, and was a point repeated more than once in the findings of the Tribunal, was that there was no consultation whatsoever between the Appellants and the Respondent after the initial discussions before the decision to dismiss was made. The only discussion that took place, according to the findings, was that the Respondent was informed that there was only 12 weeks' pay available and he made it clear that that was insufficient but there was no discussion at all of the actual decision to dismiss, despite the clear injunction that there should be such a discussion in, for example, the East Lindsey case. The medical report by the general practitioner was not discussed at all with the Respondent. Thus, there was abundant material to justify the finding by the Industrial Tribunal both in relation to the investigation, that is, the consideration of the medical report in the light of Mrs Briggs' own knowledge of the Respondent's capacity and the total absence of later consultation.

Before we move to the final points raised on behalf of the Appellant, it will have been noted that in the statement of reasons there is an apparent conflict between the finding that the Appellants did not genuinely believe the Respondent was no longer capable of doing his job and the finding that the reason for the dismissal was a reason related to his capability for performing work of the kind which he was employed by the Appellant to do. It must be said, however, that the Appellants have not sought to challenge the finding that the reason to dismiss relied upon by the Appellants was one related to lack of capacity in that sense. We do not think that there can be any well-founded criticism of the finding by the Tribunal in respect of that reason for the dismissal of the Respondent within the terms of section 57(2)(a) of the Act of 1978. What is said is that the Appellants purported to act on the basis of the report provided by the general practitioner but that, if one looks at the matter closely, that report was certainly not sufficiently clear for Mrs Briggs to accept it as final on the question of capability, bearing in mind her own knowledge of the Respondent's performance, particularly so having regard to what she knew about the Respondent's actual attitude to retirement or to termination of his employment otherwise once he had been told that only 12 weeks' pay could be paid to him in such circumstances.

Finally, the Appellants seek to rely on alleged perverseness of the findings by the Tribunal. In paragraph (e) of the grounds of appeal they list a number of matters relating to the nature of the Respondent's work and his medical condition and the history of how the matter came to be considered by Mrs Briggs and Mr Baker. These aspects of the case were all considered by the Industrial Tribunal below. They are simply points upon which argument could be based at the hearing below but they fall far short of material which would justify this Appeal Tribunal in holding that the Industrial Tribunal's decision was perverse. That ground, too, must therefore fail and the appeal against the finding of unfair dismissal as a whole must also fail.

We turn to the appeal against the assessment of the compensatory award. In relation to that, two main objections are made. The first is that the Respondent started to received sickness benefit immediately his employment with the Appellants was terminated and continued to do so until the date of the Tribunal hearing. In addition, he received invalidity benefit and an advancement of pension rights. It is suggested, that in those circumstances, no compensatory award should have been made because, if the Respondent had been sick, he would not have been earning his normal wages.

The point it wholly misconceived, however, because the Tribunal found that, on the Monday following his dismissal, the Respondent visited his general practitioner in a state of shock and depression brought about by his dismissal. He was prescribed tranquillizers, although he had never before required or been prescribed such drugs and he was still taking them at the date of the hearing. Moreover, the Tribunal found as fact that the Respondent would have continued to do his job but for his dismissal. It is clear that there was a causal relationship between the dismissal and Respondent's incapacity after his dismissal. It was, therefore, appropriate for a compensatory award to be made.

The only remaining question is whether or not the period of the compensatory award should have been terminated at a date before the hearing in June 1993. That issue was canvassed and the point about the Respondent being unfit to work since the date of his dismissal was expressly put to the Tribunal, who rejected it because the Respodent sais that he had not been able to work due to a combination of his current state of nerves, depression and his one lung; he stressed that he would have carried on his job if he had not been dismissed. It was open to the Tribunal, therefore, to conclude that the Respondent had continued to be incapacitated because of his dismissal up to the date of the hearing. No question of failure to mitigate his damage arose on that finding and the Respondent was entitled to a compensatory award up to the date of the hearing.

The other point made or suggested by the Appellants is that the Tribunal failed to take into account the question whether or not the Respondent would or might have been dismissed fairly on the ground of ill health or incapacity after a comparatively short time, that is, a comparatively short time after October 1991 and before the date of hearing. However, it is abundantly clear from paragraphs 6 and 7 of the statement of reasons, that the question of possible later dismissal was in the forefront of the minds of the Tribunal. They terminated the compensatory award at the date of hearing before them and refused to award any sum in respect of loss of future earnings or pension loss. The only faint suggestion that can be made, therefore, is that, by some curious omission, they failed to have in mind the question of dismissal on the ground of ill health or incapacity before the hearing, although they had it fully in mind in considering the future.

In our judgment such an allegation is quite unsustainable. There was evidence before the Tribunal to justify an award up to the date of the hearing below. Matters of assessment of this kind are always difficult and Industrial Tribunals have to do the best that they can on the evidence before them. The Respondent was representing himself and understandably, therefore, was not armed with any medical evidence. We can see no justification as a matter of law for interfering with the award made by the Industrial Tribunal and that appeal must also be dismissed.